Da (im)possibilidade da aplicação da lei de guarda compartilhada à luz da jurisprudência do Tribunal de Justiça do Rio Grande do Sul

Abstract

It is approached in this research, through the deductive, historical and monographic methods, the possibility and in which cases it is feasible the application of the law 13.058/2014 in lawsuits that involve the custody of children and adolescents. This discussion is relevant because, although the law imposes on the responsibility for the application of shared custody, there are several doctrinal and jurisprudential currents, especially in the Court of Justice of Rio Grande do Sul, which do not observe this legal provision, considering, therefore, the principle of the best interest of the child. This because the imposition of custody sharing when there is no good relationship between the separated parents may be more harmful than beneficial to the youngest child. It is understood that shared custody must be determined not by a decision applying the law without more detailed analysis of the specific case, but by a joint determination of both parents. There are also some other circumstances that may prevent the establishment of shared custody, such as the distance between the homes of each parent. Finally, it was verified by this work, after a detailed analysis of the doctrine and jurisprudence of the Court of Justice of Rio Grande do Sul, that shared custody should be fixed when there is a good coexistence among the parents, which makes the law dissonant of reality often conflicting with the child best interest.