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 / 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 and visitation.
The family power of the parents ends when the child is 16 years old
A child who is not legally recognized by the father, remains under the exclusive family power of the mother (article 1.633 of the Civil Code). The father’s name must be included on the child’s birth certificate to create family power for him.
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 court.
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.
If the child is not a Brazilian resident, a parent can travel with the child abroad without permission of the other parent.
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 can request permission from the court. This is necessary, because relocating to a distant place without permission of the other parent with family power or the permission of the court can be considered an act to hinder the co-existance of the minor with the other parent and their family, which is 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. 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 6 – 24 months. In case of an urgent situation, a parent can ask for an interim decision about the relocation to make the relocation possible.
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.
Child abduction: Brazil
Brazil is a party to the Hague Convention on Child Abduction.
The Central Authority is a first point of contact if you want your children to return. They will forward your request for the children to return to the other parent and offer mediation. They will give the other parent 5 days to respond. You are not obliged to contact the Central Authority first.
The return applications are dealt with by the family courts.
The procedure takes more then the 6 weeks that are mentioned in the Hague Convention. In fact, the procedure can take years. The appeal procedure takes more then 6 months.
A special judge has been appointed, who can have judicial communications with judges from other countries if so desired in any case.
The courts decide whether to have a child interview or to order a multidisciplinary 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’), 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.
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
Brazilian Central Authority – Ministry of Women, Racial Equality and Human Rights : www.gov.br
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Relevant case law in Brazil
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