How can you prepare child relocation from or within Brazil? What if your child has been relocated to Brazil without your consent?
Brazil is a signatory of the Hague Convention on Child Abduction of 1980 and to the Inter-American Convention on the International Return of Children of 1989.
We will explain what that means for your options.
Lawyers and mediators in Brazil
We provide a list of lawyers and mediators in Brazil who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: Brazil
Under Brazilian law the society and families, especially parents, are responsible for a healthy development of minors (article 227 of the Brazilian Constitution).
According to article 1.631 and 1.634 of the Civil Code, both parents exercise ‘family power’. This means educating and upbringing of the child, exercising the unilateral or shared custody, giving or denying consent to marry, unitl the age of 18 years / to travel abroad / to relocate and representing the child.
This joint exercise of family power in general continues after divorce. In case of seperation the parents or the court must make a decision about unilateral or joint material (physical) custody, child support and visitation.
The family power of the parents ends when the child is 18 years old.
If the father is not legally acknowledged, the mother retains exclusive parental authority over the child (as stated in article 1,633 of the Civil Code). To confer parental authority to the father, his name must be registered on the child’s birth certificate.
Based on article 70 of the Child and Adolescent Statute all citizens are responsible for reporting threats or violations to the rights of minors. This means that the State, but also a third party or the non-custodial parent can bring a matter concerning a child’s wellbeing to a court or social service.
Traveling with children: Brazil
If you want to travel abroad with your child who is a Brazilian resident , you need permission from the other parent, if he or she has family power (Resolution 131 of 2011). This permission needs to be a written authorisation with a certified signature of the other parent.
In Brazil, it is possible for a child to travel internationally with only one parent or legal guardian if they have a valid Brazilian passport with the proper authorization. This authorization, known as “Autorização de Viagem Eletrônica” (Electronic Travel Authorization), is an electronic document that can be obtained through the Brazilian Federal Police website or at a Brazilian consulate abroad.
The purpose of this authorization is to ensure the safety and well-being of the child, and to prevent cases of child abduction. To obtain the authorization, the parent or legal guardian who is traveling with the child must provide information about the trip, including the destination, travel dates, and contact information for both parents and legal guardians.
It is important to note that if the other parent or legal guardian does not grant permission for the child to travel, the matter may need to be resolved through the Brazilian court system. Additionally, some countries may require additional documentation or authorization for a child to enter or exit their borders, so it is always advisable to check the requirements of the destination country before making travel arrangements.
If the child holds Brazilian Nationality but is not a Brazilian resident, a parent still cannot travel with the child abroad without the permission of the other parent. This situation is mandatory, even if the parent is not a Brazilian National.
Child relocation: Brazil
If a parent wants to move with the children and the other parent with parental authority refuses to give permission, the parent who wants to move must request permission from the court. This is necessary, because relocating to a foreign country without permission of the other parent with family power or without the permission of the court is considered an act that hinders the co-existance rights of the other parent over the minor of the minor and their family, which characterize an act of parental alienation (Law 12.318/2010). This Parental Alienation Law gives the court the power apply penalties in case of parental alienation, such as a monitary fine, expansion of visitation for the other parent or alteration of custody.
The court will take the child’s best interest as the guiding principle in these cases. The court will also take in to consideration the reason why the parent wishes to relocate and whether the relocation will result in parental alienation or not. The court will respect the child’s right to co-exist with with both it’s parent’s families, as this is considered to be crucial for it’s development.
Normally court procedures about relocation can take on average 6 – 24 months. In case of an urgent situation, a parent can ask for an interim decision about the relocation to make the relocation immediately possible. To obtain an interim decision about the relocation of a child in an urgent situation in Brazil, the requesting parent would need to provide evidence to the court that there is a serious and immediate risk to the child’s well-being if the relocation is delayed. This evidence may include documentation of threats or violence, medical reports, police reports, or any other relevant evidence that supports the claim of urgency.
In addition to proving the urgency of the situation, the parent requesting the interim decision would need to demonstrate to the court that the proposed relocation is in the best interests of the child. This may include evidence of improved living conditions, access to better education or healthcare, or the child’s desire to relocate.
If the other parent wants to prevent the move to another part of the country or another country, he or she can ask the court for an order prohibiting the relocation of the child. The minor’s best interest will be guiding. The court will consider whether the relocation can breach a child’s rights and/or harm its development but also considered the reasons behind such requests, such as a job opportunity, etc. It is also important to clarify that moving to another part of the country is much simpler to be authorized than an international relocation.
Child abduction: Brazil
Brazil became a party to the Hague Convention on the Civil Aspects of International Child Abduction on August 22, 2000.
The Central Authority is an organization designated by each signatory country to the Hague Convention on the Civil Aspects of International Child Abduction. In Brazil, the Central Authority responsible for implementing the Hague Convention in Court is the Federal Attorney General’s Office.
If a parent wishes to request the return of their child who has been wrongfully removed or retained in a signatory country, they can contact the Central Authority of their own country or the country where the child is located.
The Central Authority is the first point of contact for parents seeking the return of their child, as they will facilitate communication between the parents and the relevant authorities, including the Central Authority of the other country.
In Brazil, if a parent contacts the Central Authority to request the return of their child, the Central Authority will forward the request to the other parent and offer mediation to resolve the matter amicably. The other parent has 5 days to respond to the request, and if they agree to the return of the child, the Central Authority will facilitate the process. If the other parent does not respond within 5 days or objects to the return of the child, the Central Authority will initiate legal proceedings to resolve the matter.
The return applications are dealt with by the Federal Court in Brazil.
In Brazil, the procedure for resolving cases of child abduction under the Hague Convention can take longer than the 6-week timeframe established by the Convention. In practice, the process can take several months or even years to be resolved, particularly if appeals are filed.
However, Brazil has established a special court to handle Hague Convention cases, the Superior Court of Justice (STJ), which has a dedicated team of judges and staff responsible for handling these cases. This court has the authority to communicate with other courts and judges from signatory countries, allowing for more efficient and effective communication and cooperation in resolving cases.
While the Hague Convention sets a 6-week deadline for the resolution of child abduction cases, it is important to note that this is a general guideline and not a strict requirement. The length of time it takes to resolve a case will depend on various factors, including the complexity of the case, the cooperation of the parties involved, and the legal processes in the relevant countries.
In Brazil, the appeal procedure can take longer than 6 months, but the Supreme Court has established procedures to expedite these cases as much as possible. This includes prioritizing Hague Convention cases on their docket and working to ensure that appeals are heard and decided on as quickly as possible.
The courts decide whether to have a child interview or order a multidisciplinary psychosocial report.
Besides that, in Brazil, every civil case involving the interests of children has the mandatory participation of the Federal Prosecutor’s Office (‘Ministério Público Federal’), not as a direct representative of the child, but as a guardian of his/her interests.
Mediation is possible through the Central Authority once a return application has been made to the Central Authority as well as during the case.
When either of the parents appeals, both parents have the possibility to ask the court to postpone the courts decision for as long as the appeal takes.
You can ask the court to decide that the abducting parent must pay the expenses made in connection with the abduction and the return of the child.
If you think your child is in the Netherlands, but you do not know exactly where, the Dutch Central Authority can help you locate your child.
If you fear that your child will be abducted from the Netherlands to another country, or otherwise disappear from view, various measures can be taken:
- child’s passports to be deposited with authorities
- alleged abductor’s passport to be deposited with authorities
- obtain orders to prevent the removal of the child
- issuing border and/ or port alerts
- requiring the alleged abductor to report periodically to authorities.
A parent who does not live in Brazil, but who does need a lawyer in Brazil for a return application, may be eligible for subsidized legal assistance. This is not depending on his/her income and assets, but on the assesment of the case by the Central Authority and the office of the Attorney General. If they forward the case to the court the parent will get free legal aid. If the Central Authority does not forward the case to the court, the parent can decide to hire and pay a lawyer to do that.
The alleged abducting parent can also apply for legal aid, based on the general criteria for legal aid.
Criminal law : Brazil
The wrongful removal or retention of a child by a parent from another State is considered a criminal offence if the parent was destituted of his/her parental responsibility prior to the abduction. In that case the child abduction can be sentensed with detention from 2 months up to 2 years. This penalty may be exchanged for alternative penalties, such as pecuaniary measures.
Relevant websites : Brazil
Permission form to travel with children
Brazail law on child abduction
Subsidized legal aid
Send an e-mail to: firstname.lastname@example.org
Contact the border patrol
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