A perda do poder familiar sob a perspectiva da lei 13.715/18 e seus efeitos nas decisões judiciais

Abstract

Paternal power first appeared in Ancient Rome and went through significant transformations over the years. It is worth noting that it was exerted by parental authority, without any maternal interference. Thus, the way this power was exerted in Rome has influenced the exercise of the referred institution by several peoples in Ancient History. Consequently, in Brazil, keeping in mind legislative evolution, with the coming of the 1988 Constitution, as well as the 2002 Civil Code, the power of parents was renamed as family power (“Poder Familiar”), being exerted by both genitors in equal measure. Likewise, it is important to mention that, with law 12.318/2010, about parental alienation, a new denomination to this institute appeared: parental authority (“Autoridade Parental”). One also emphasizes the importance of the family, of the family power exerted by parents and based upon guiding principles for this action. Besides that, family power can be extinguished automatically or by a court order. Article 4th of law 13.715/18 added the single paragraph to article 1.638 of the Civil Code, increasing hypotheses in which family power is lost. Thus, it is possible to verify the effects of the cited law on court decisions, since judges, in situations of loss of family power, based on crimes committed by one of the genitors against others that exert equal power, decide by suspension of family power and not by immediate destitution, waiting for the criminal sentence, and that is what this present paper seeks to approach through a deductive, descriptive, jurisprudential, and bibliographical research.