Tutela jurídica e guarda compartilhada de animais domésticos: direito de família e dignidade animal no reconhecimento das famílias multiespécie

Abstract

This paper proposes a current and necessary reflection on the legal protection and shared custody of domestic animals in Brazil, considering the recognition of multispecies families and animal dignity within the scope of Family Law. Thus, the central problem investigated is the lack of legitimate and effective legal recognition of domestic animals as members of multispecies families, especially in cases of dissolution of emotional bonds between their owners, where regulation of the custody and protection of these animals is necessary. Therefore, the hypothesis is that the Brazilian legal system requires uniform and consistent regulation for the guardianship and shared custody of domestic animals, which is reflected in gaps in the legislation, divergences in the controversy, and acceptance of the principle of animal dignity enshrined in the 1988 Federal Constitution and generating legal uncertainty and unequal treatment. Thus, the relevance of this topic lies in the significant growth in the number of pets in Brazilian households and the emerging need to adapt Family Law to social transformations that include multispecies families. Simultaneously, the importance of recognizing animal sentience is highlighted, necessary to guarantee fundamental rights to nonhuman animals and protect them from abuse. In this context, the study's general objective is to critically analyze the foundations, obstacles, and advances related to the recognition of multispecies families in Brazil, with an emphasis on the normative, doctrinal, and jurisprudential aspects that affect the legal protection and shared custody of animals. The specific objectives include: understanding the historical and social evolution of the concept of family and its expansion to include affective bonds between humans and animals; investigating the rights of nonhuman animals from a constitutional, civil, and infraconstitutional perspective; identifying the legal consequences of family dissolution for domestic animals; analyze the role of the legislative, judicial, and executive branches in promoting animal rights; and propose alternatives for improving legal protection and the division of responsibilities among guardians that aim at animal welfare. Furthermore, the adopted methodology involves a literature review, legislative, doctrinal, and jurisprudential analysis, an evaluation of specific cases, and a comparative study with international legal systems. The results indicate progress in the judicial recognition of animals' legal capacity, the extension of custody and alimony provisions to cases involving pets, and the emergence of relevant legislative proposals, such as Bill No. 179/2023. However, gaps and resistance are evident, hindering the full legal recognition of these legal issues and the need to reform the Brazilian Civil Code. The conclusion is that the legal recognition of multispecies families and the effective protection of domestic animal rights are challenges that impede coordinated action by the State and society to ensure legal protection compatible with animal dignity and the plurality of contemporary families.