Termination of Parental Authority: Serious Grounds and Procedure

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

Termination of parental authority is the extreme measure the courts apply when parents commit serious acts that compromise the safety, health or development of their minor children, under the grounds set out in the Civil Code and the ECA (Brazil’s Child and Adolescent Statute).

Concept and legal basis

Termination of parental authority (destituição do poder familiar) is the permanent loss of parental authority. It is governed by Arts. 1.635 to 1.638 of the Civil Code and by Art. 155 and following of the Child and Adolescent Statute (Law No. 8.069/1990). It is the most severe sanction Brazilian law provides against parents who seriously fail to meet their parental duties.

Parental authority encompasses the duties and rights parents have toward their minor children, including upbringing, education, custody, legal representation and management of the children’s property. Termination removes all of these powers, leaving the parent with no authority over the child.

The measure is exceptional and cannot be reversed as long as the causes that prompted it persist. A parent whose authority has been terminated may ask for it to be restored only by showing that circumstances have changed substantially and that restoration serves the child’s interest.

Legal grounds for termination

Art. 1.638 of the Civil Code lists the grounds for termination: punishing the child excessively, abandoning the child, committing acts contrary to morality and good customs, and repeatedly committing the violations listed in the preceding article (suspension of parental authority).

The Civil Code expands these grounds in Art. 1.638, sole paragraph (added by Law No. 13.715/2018): committing sexual violence, homicide or another intentional crime against life against the child, and subjecting the child to sexual exploitation.

Repeated material and emotional abandonment is a frequent ground. A parent who disappears from the child’s life, does not contribute to the child’s support and keeps no bond with the child for a prolonged period may lose parental authority. Case law requires that the abandonment be voluntary and unjustified.

It is the most severe sanction Brazilian law provides against parents who seriously fail to meet their parental duties.

Severe substance dependence that compromises the care of the children is a ground recognized by the courts. A parent who, because of addiction, exposes the child to risks, neglects basic care or keeps the child in an unsanitary environment may have parental authority terminated.

Court procedure

The action to terminate parental authority follows the special procedure set out in Arts. 155 to 163 of the ECA. The Public Prosecutor’s Office (Ministério Público, or MP) and anyone with a legitimate interest may file the action, including the other parent, relatives, and the Conselho Tutelar (the municipal child protection council) by submitting a referral to the MP.

The Public Prosecutor’s Office must take part in the case, either as the plaintiff or as guardian of the legal order. The MP generally acts on reports from the Conselho Tutelar, complaints from neighbors or relatives, and information from schools and health clinics.

The defendant parent is guaranteed a full defense and the right to be heard. If the parent has not hired a lawyer, the judge appoints a court-appointed defense attorney or refers the parent to the Public Defender’s Office (Defensoria Pública). The child must be heard when mature enough to express an opinion.

Social studies and psychological evaluations are prepared by the court’s technical team. These reports assess family conditions, the quality of the bond between parents and children, and the possibilities for family reintegration before authority is terminated.

Effects of termination

The parent loses all rights inherent to parental authority: custody, legal representation, management of property, the right to consent to the child’s marriage and the right to claim support from the child in the future. The biological bond remains, but parental authority ends.

Termination for both parents opens the way for placing the child with a substitute family, and the child may be adopted. Adoption is irrevocable and permanently severs ties with the biological family, except for purposes of marriage prohibitions.

If only one parent loses authority, parental authority rests entirely with the other. If neither parent can exercise parental authority, the judge appoints a guardian (tutor), preferably from the extended family (grandparents, aunts and uncles, older siblings).

Alternatives to termination

Before terminating authority, the judge may adopt less severe measures: suspension of parental authority (Art. 1.637 of the Civil Code), a formal warning, referral to psychological treatment or substance dependence treatment, supervision by social services and enrollment in family guidance programs.

The principle of minimal State intervention in the family (Art. 100, sole paragraph, VII, of the ECA) requires that every possibility of keeping the child in the biological family be exhausted before authority is terminated. The extended family (grandparents, aunts and uncles) must be called upon as an alternative.

Family reintegration is always preferable to termination. Family bond-strengthening programs, offered by CRAS and CREAS (Brazil’s public social assistance centers), aim to support families in vulnerable situations so that they can continue to provide adequate care for their children.

Frequently Asked Questions

Who can ask for termination of parental authority?

The Public Prosecutor’s Office is the main party with standing, acting on reports from the Conselho Tutelar, complaints or its own investigations. The other parent may also file the action, as may anyone with a legitimate interest in protecting the child (grandparents, aunts and uncles, stepparents). The Conselho Tutelar does not file the action directly, but refers the case to the MP so that the MP can do so.

Can termination of parental authority be reversed?

In theory, yes, provided the causes that led to termination have completely ceased and restoration serves the child’s best interest. In practice, reversal is rare, especially if the child has already been adopted (in that case, reversal is impossible). The parent must file an action for restoration of parental authority and show concrete, lasting change in his or her circumstances.

Is a parent who lost parental authority still required to pay child support?

Yes. Termination of parental authority does not end parents’ obligation to support their children. The duty of support arises from the family relationship (parentage), not from parental authority. Even after losing authority, the parent remains obligated to contribute to the child’s support until the child reaches the age of majority or for as long as the need continues.

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