A alienação parental e os desafios do judiciário em assegurar os direitos da criança e do adolescente

Abstract

This paper aims to analyze parental alienation from the perspective of protecting the rights of children and adolescents, focusing on the challenges faced by the Judiciary in handling cases in which such acts occur. Parental alienation is a relatively recent yet increasingly prevalent issue, affecting numerous families and, most notably, children and adolescents who suffer from alienating behaviors and their severe consequences. Minors are often used as tools or weapons in the practice of parental alienation, bearing the burden of being victims themselves. This reality raises a central question: what measures are being taken by the Judiciary to prevent revictimization and to ensure the rights of children and adolescents? To understand this complex issue, the methodology adopted in this monograph is based on bibliographic research, including legal doctrines, scientific articles, and academic papers, as well as documental analysis of reports and official documents issued by public agencies. The study begins by exploring the discussions and transformations surrounding the concept of family, then introduces the core definitions of parental alienation and the debate surrounding Parental Alienation Syndrome (PAS), analyzing their psychological and legal impacts on minors and the family institution. Subsequently, the research examines the phenomenon of implanted false memories and its direct consequences on the development and well-being of children and adolescents, as well as the possibility of suspension or loss of parental authority as a sanction for alienating acts. The study also includes an analysis of the relevant legal instruments, such as the Parental Alienation Law (Law No. 12.318/2010) and its amendments introduced by Law No. 14.340/2022, as well as the Special Testimony Law (Law No. 13.431/2017), highlighting debates on the use of children’s testimonies as judicial evidence. Finally, the paper also explores the potential civil liability of the alienating parent and prompts a critical reflection on the Judiciary's role, considering the possibility of holding it accountable for failures in judicial performance. The conclusion advocates that judicial interventions should prioritize the best interests of the child and adolescent, requiring a more sensitive and responsive stance from the Judiciary, with solutions that are more humane, effective, and less damaging than the sole attribution of blame to the alienating parent, in order to safeguard the fundamental rights of the minors involved. Thus, given the relevance of the subject and the essential need to ensure the full protection of children and adolescents, it is imperative that the legal system—and especially the Judiciary—be prepared to recognize and confront the complexities inherent in cases of parental alienation, always acting in a way that provides the best possible outcomes for the minors.