Shared Custody in Brazil: Parents’ Rights and Duties

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

Shared custody has been the default rule in Brazilian law since 2014. It requires both parents to take part in the important decisions about their children’s lives, even after the marriage or relationship ends.

What shared custody is

Shared custody (guarda compartilhada) is the arrangement set out in Article 1.583, § 1, of the Civil Code. Under it, a mother and father who no longer live under the same roof continue to share responsibility for their child and to exercise the same rights and duties toward the child. It is the default model established by Law 13.058/2014, and a judge applies it whenever both parents are fit to exercise parental authority, even if they do not agree with each other.

Shared custody is often confused with alternating custody, but it does not require the child’s time to be divided mathematically. What the parents share is the decision-making on health, education, housing, religion and the other aspects of the child’s upbringing. As a rule, the child usually lives primarily with one parent, whose home is treated as the child’s “home base,” and this does not take away the other parent’s shared responsibility.

When shared custody is not workable, because of domestic violence, an insurmountable geographic distance or one parent’s obvious lack of interest, the judge may order sole custody. The judge is always guided by the principle of the best interests of the child, enshrined in Article 227 of the Federal Constitution and in the Child and Adolescent Statute (Estatuto da Criança e do Adolescente).

Parents’ rights under shared custody

The arrangement guarantees both parents the right to take part, on equal terms, in the decisions that affect the child’s life. Choosing a school, authorizing travel, deciding on medical treatment, opting for extracurricular activities and making other important choices must all be done jointly, even if the child spends most of the day-to-day time with one parent.

The parent who does not provide the home base keeps the right to broad and balanced time with the child, including overnight stays, holidays, school vacations and special dates. The case law settled in Brazil’s higher courts rejects restrictive visitation schedules when there is no concrete justification, recognizing that a daily emotional bond is essential to a child’s development.

Another important right is full access to school and medical information. Schools and health care professionals must provide information to either parent, regardless of who actually holds formal custody, and they may not refuse simply because the couple has separated.

The arrangement guarantees both parents the right to take part, on equal terms, in the decisions that affect the child’s life.

Parents’ duties under shared custody

The natural counterpart to these rights is the set of duties placed on both parents. The first is the joint and responsible exercise of parental authority (poder familiar). This requires communication, a willingness to compromise and a readiness to put the child’s interests ahead of any lingering resentment from the end of the relationship.

The duty to pay child support continues. It is set according to the child’s needs and the paying parent’s ability to pay. The fact that custody is shared does not eliminate the support obligation, as the Superior Tribunal de Justiça (Brazil’s Superior Court of Justice) has held. When there is a significant income gap between the parents, or when the child lives mostly with one of them, the other pays support in proportion to his or her income.

Parents must also take care to preserve the continuity of the child’s routine and avoid unilateral decisions that undermine the child’s harmonious relationship with the other parent. Moving to another city, changing schools and international travel require agreement or a supplementary court authorization. Otherwise, the conduct may amount to parental alienation, an offense defined in Law 12.318/2010.

Frequently Asked Questions

Does shared custody mean dividing time equally between the parents?

No. The arrangement divides responsibilities and decisions, not necessarily time in equal parts. As a rule, the child has a primary residence with one parent, and the other parent has broad time with the child under a schedule set in the court judgment or in an approved agreement. An evenly split schedule is actually alternating custody, a different arrangement that is rarely applied because it creates more instability for the child.

Who pays child support under shared custody?

The support obligation remains with both parents, in proportion to their financial means. When there is an income gap, or when the child lives mostly with one parent, the other pays the support set by the judge. Shared custody does not eliminate the duty of support. It only reorganizes how parents and children relate to one another after the separation.

Can shared custody be changed after it has been set?

Yes. Custody can be reviewed whenever there is a significant change in the circumstances that supported the original decision, under Article 1.586 of the Civil Code. A move to another city, repeated failure to meet parental duties, signs of parental alienation or a risk to the child’s well-being all justify filing a modification action. The judge will decide based on psychosocial evaluations and, whenever appropriate, will hear from the child or adolescent.

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