“Amar é faculdade, cuidar é dever”: a responsabilidade civil dos genitores por abandono afetivo

Abstract

The present study aimed to examine the possibility of sentencing the genitor to pay compensation to his offspring for pain and suffering due to emotional neglect. This situation is commonplace in the family environment. Although it is not a current phenomenon, it has recently gained importance in the debates surrounding the issues of Family Law, precisely because of the evolution of the family and its concept, given the social relations dynamism. For that purpose, we analyzed the theoretical feasibility in a doctrinal, legal, and jurisprudential way, in the legal system and in the courts' practice of holding one of the parents civilly liable for emotional neglect. In the first chapter, a historical and legal study of the family in the Brazilian context was carried out. In this sense, we focused on approaching the legal treatment given to the issue by the Federal Constitution of 1988, by the constitutional principles applicable to Family Law, and by the Brazilian Civil Code of 1916 and 2002 in order to highlight affection as the family nucleus main element. By way of information and contextualization on questions related to the central theme, in the second chapter, through brief considerations on civil liability in the Brazilian Civil Law, the assumptions, classification, and the plurality of functions of the institute were clarified. In the third chapter, through the notes made in the second chapter, it was shown how the lack of affection from one of the parents in the development of their children meets the requirements for civil liability; and, therefore, must be subject to the legal consequences arising from this violation of rights. In the fourth and last chapter, we prioritized examining the practical application of the positions held in this research. To this end, we presented jurisprudence on the subject as well as some innovations proposed in the legislative sphere from the Senate Bill No. 700/2007. This entire analytical journey culminated in reaching and reinforcing the conclusion that the parents’ liability to compensate that child, victim of emotional neglect and suffering from various immaterial damages, is justified. However, it is always necessary to consider the concrete case in order to observe the fulfillment of the necessary assumptions for the legal classification of the negligence in question. Furthermore, in situations with decisions in favor of the position held in this study, the conviction weighing must be prioritized, to respect reasonableness and proportionality.