A guarda compartilhada e a desvinculação do pressuposto de fixação de residência próxima entre responsáveis

Abstract

Nowadays, Family Law has laid eyes on the ruling of parenthood and affective relationships, beyond support of resolution of conflicts on that area. Thus, the legal custody institute came as a tool for dispute resolution between guardians of children and teenagers. Historically, there has been many changes about custody modalities on Brazilian legal statutes, wherein today there is legal regulation for unilateral and shared custody. Concerning the latter, it is noticeable the absence of uniformity in legal decisions, once that interpretations differ about applicability factors such as residence settling distance among custodians, that being considered as an obstacle to shared custody concession. On that line of thought, this work aimed to analyze if the referred custody modality as a mean of effectuation of fundamental principle of the child’s best interest, overall when it comes to binding or not of the premise of nearby residence settling among custodians. Therefore, it was employed deductive approach method, monographic and comparative procedure methods, in addition to indirect documentation – which includes Courts’ judgments – as a research technique. Results, in spite of absence of jurisprudential unanimity and position of the Superior Court of Justice, indicate that settling of distinct residence places alone cannot be reputed, in an out of context way, as an obstacle to shared custody. On the contrary, the idea that prevails consists on relativization of residence settling in benefit of the child’s best interest consecration.