Family Life: The Constitutional Right of Children and Adolescents

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Family life is a fundamental right of children and adolescents, guaranteed by Article 227 of the Federal Constitution and by the Child and Adolescent Statute. Together, they place a duty of full protection on the State, the family, and society.

Constitutional and Statutory Basis

Article 227 of the Federal Constitution provides that the family, society, and the State have a duty to ensure children, adolescents, and young people, with absolute priority, the right to life, health, nutrition, education, leisure, vocational training, culture, dignity, respect, liberty, and family and community life.

The Child and Adolescent Statute (Law No. 8.069/1990), known in Brazil as the ECA (Estatuto da Criança e do Adolescente), devotes Chapter III (Articles 19 to 24) to the right to family and community life. Article 19 provides that every child and adolescent has the right to be raised and educated within their own family and, only in exceptional cases, within a substitute family.

The Convention on the Rights of the Child (Decree No. 99.710/1990), an international human rights treaty ratified by Brazil, also guarantees a child’s right to maintain personal relations and direct contact with both parents on a regular basis, unless doing so is contrary to the child’s best interests.

Natural Family and Extended Family

The ECA defines the natural family as the community formed by the parents, or either of them, and their descendants (Article 25). The extended family is one that reaches beyond the parent-and-child unit and is made up of close relatives with whom the child lives and has bonds of affinity and affection (Article 25, sole paragraph).

Brazilian law prioritizes keeping a child in the natural family. Placement in a substitute family (through guardianship, tutela, or adoption) is an exceptional measure, used only after every possibility of remaining with the biological family has been exhausted.

The extended family has priority over unrelated third parties to take in the child when the parents cannot exercise custody.

The extended family has priority over unrelated third parties to take in the child when the parents cannot exercise custody. Grandparents, aunts and uncles, older siblings, and godparents with an emotional bond are approached first, before anyone considers placing the child in a shelter or with a substitute family.

The Right to Live With Both Parents

Article 1.632 of the Civil Code provides that judicial separation, divorce, and the dissolution of a stable union do not change the relationship between parents and children, except for the parents’ right to have their children in their company. Shared custody is the rule, so that the child can stay close to both parents.

A parent who does not hold custody has a right to time with the child, which the judge regulates under Article 1.589 of the Civil Code. This time includes in-person visits, overnight stays, vacations, holidays, and special occasions, as well as contact by phone, video call, and other means.

The right to time with the child may be restricted only when there is a risk to the child’s physical or psychological integrity. Proven violence, abuse, or neglect can justify suspending or restricting visits, with or without professional supervision.

Parental Alienation and Violation of the Right to Family Life

Law No. 12.318/2010 (the Parental Alienation Law) defines the conduct that interferes with a child’s or adolescent’s psychological development. Such conduct may be promoted or induced by one parent, or by anyone with authority over the minor, to make the child reject a parent or to harm the creation or maintenance of bonds with that parent.

Parental alienation is a serious violation of the right to family life. A parent who makes it hard for the child to have contact with the other parent, disparages the other parent’s image, blocks visits, or manipulates the child against the other parent may face sanctions ranging from a warning to a reversal of custody.

The sanctions provided by the law include a warning, expanded time with the alienated parent, a fine, an order for psychological counseling, a change of custody, and, in extreme cases, suspension of parental authority. The severity of the sanction is proportional to the degree of alienation.

Institutional and Foster Care

When a child cannot remain with the natural or extended family, institutional care (a shelter) or foster care is a temporary and exceptional measure (Article 101, § 1, of the ECA). Placement in care does not mean deprivation of liberty, and it must preserve family ties as much as possible.

The maximum period for institutional care is 18 months (Article 19, § 2, of the ECA). During that time, the technical team must work toward the child’s return to the family or, if that is not possible, refer the child to a substitute family. Prolonged stays in a shelter violate the right to family life.

Foster care (a família acolhedora, or host family) is preferable to institutional care because it keeps the child in a family setting while separated from their own family. Families that have been registered and approved in advance temporarily take in children and adolescents, offering emotional support until their legal situation is resolved.

Frequently Asked Questions

What can I do if one parent prevents the other from seeing the child?

The parent who is being kept away should ask the family court to regulate the right to time with the child. If a schedule is already in place and is not being followed, that parent can ask the court to enforce the decision and to impose a fine (astreintes, a daily penalty for noncompliance) on the alienating parent. In serious cases of parental alienation, the parent can ask for a change of custody. The Conselho Tutelar (Child Protection Council) can also be called on to mediate the conflict.

Can children in a shelter receive visits from their family?

Yes. Institutional care does not sever family ties. The biological family has the right to visit the child in care, unless a court decides otherwise for safety reasons. The care program must make visits easier and encourage them as part of the work of reuniting the family. Banning visits requires serious grounds and a specific court order.

Can a father be deprived of contact with his child?

Yes, but only in serious cases proven in court: physical or sexual violence against the child, abandonment, a situation that endangers the minor’s integrity, or a criminal conviction for a crime against the child. Total deprivation of contact is an extreme measure, usually preceded by a gradual suspension or restriction of visits. The Public Prosecutor’s Office and the court’s technical team take part in the assessment.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.