Entre pais e filhos: responsabilidade civil por privação de afeto decorrente da alienação parental

Abstract

This paper analyzes the civil liability for acts of parental alienation in the context of broken family relationships, from the perspective of the implications of the doctrine of comprehensive protection of children within the family. The theme approached starts from the understanding of the concept of democratic family, from the legal recognition of affection as a principle and right of those who make up the family relationship, whose violation, through acts that imply the deprivation of parental affection, causes damage of an affective nature, demanding the due jurisdictional protection of reparation. This is followed by interdisciplinary studies, demonstrating the importance of childhood in the formation of mankind and the harmful consequences that the deprivation of affection resulting from parental alienation may cause. Focusing on broken families and on custody conflict scenarios, the relevance of the theme and parental alienation are presented from a legal point of view, framing it as an unlawful act capable of giving rise to civil liability in the family sphere. Resorting to the analysis of the legislation in force, of the jurisprudence and, above all, of the doctrinal debates, the research carried out is of an exploratory, bibliographical and documental type, with the use of the deductive approach method, starting from the contextualization of the structural alterations in the family under the aegis of the Federal Constitution of 1988 until proposing the use of a legal instrument typically related to property as a solution alternative to an eminently existential issue. The hypothesis has theoretical support, since the meeting points between civil liability and family law are growing, giving rise to debates on the one hand about the protection of the integrity, including affective, of the human person, and on the other, about the consequences of a possible (and unwanted) patrimonialization of affection. With such premises, from the perspective of the humanization and constitutionalization of Brazilian private law, destining to children a look of care and the right to family affection, it is concluded for the possibility of the legal category of civil liability for deprivation of affection resulting from parental alienation, to be formed also by complementary measures in addition to monetary compensation, in order to effectively repair the affective damage caused to the relationship between parents and children.