GODOY, Marissol Galvão [1], MARQUES, Vinicius Pinheiro [2]
GODOY, Marissol Galvão; MARQUES, Vinicius Pinheiro. Socioafetivo kinship families Reconstituted and Legal reflections with the recognition of Multiparentalidade. Multidisciplinary Core scientific journal of knowledge. 03 year, Ed. 07, vol. 01, pp. 102-126, July 2018. ISSN:2448-0959
Summary
This article aims to analyse the family formed by affectivity, named reconstituted with focus on multiparentalidade and its effects, whereas some scientific articles, doctrines and jurisprudence on the subject. With the emergence of new types of families, the recognition of the right of the child in order to regulate emotional parents and the existing link. The concept of multiparentalidade, which is the possibility of coexistence of membership socioafetiva together with the biological affiliation, in view of the principle of dignity of the human person and the bonds of affection. Since this phenomenon is already a social reality, important do analyze the legal regulations on the subject.
Keywords: Affection, effects, Family, Multiparentalidade.
Introduction
The bond created by daily life, relationship of affection, companionship, dedication, donation between parents and children become empowered in society. Social transformations modify the form of acting and thinking of the people when it comes to family, a cultural group, that over time come incorporating new values and forms of agglutination, remodeling so your structure.
On the social reality, the disruption of traditional kinship of father, mother and children arising from the marriage, gained great strength with the divorce law of 1977 which facilitated the large number of marital break-ups, with it, the figure of a new family situation with new people, this situation was reverberating until we get in the family recomposed that formed by father, mother and children, who now becomes ours.
Given this, the rules governing our legal system cannot be immutable in time, demands a rereading of our civil codification in all aspects, therefore, should be on alert to support and guarantee the rights of these new family relationships
The Federal Constitution of 1988, took into account that the concept of family became plural, endorsing not only that arose from the traditional marriage between a man and a woman, but also due to the stable, as article 226, § 3, and the single parent, based on article 226, § 4.
The focus when tackling this job, is the affection in the heart of family formation in which encompasses a loving relationship you have with someone and the effects and reflections of the multiarentalidade, new Institute that arises in the course of the Constitution of these families. Analyze the obligations and duties between parents alike and biological parents and recognition of membership in duplicitous, including registry law. Based on the doctrines, scientific articles and case law on the subject.
1. Links for kinship and socioafetiva membership
Family is the core of a social body driven by the need of human beings to establish relationships. For a long time remained linked to a conservative historical context, where, the marriage was legally recognized means to start a family and considered to be indissoluble, symbolized by the Union of a man and a woman that raise children. Labeled by a patriarchal system where the father was the provider, the center of the family organization, solely responsible for the sustenance of the family, the woman already fit the role of the educator children and keep House. That pace if perpetuated her down through the generations, the children grew up in this culture and rooted out of the House, to get married and get the same story, forming a pattern familiar socially accepted.
For decades the brazilian legislation attempted to preserve hard the institution of traditional family and blood ties between the relatives. Once considered only son, possessor of rights, that from within a conjugal union, called legitimate son. Soon, that we haven't been in this scenario was considered illegitimate, not holding the same rights. Still, forbade or created impediments to the breakup of marriage and adoption, ignoring the importance of affection.
However, the traditional family model as at the time of our fathers, was losing your reference. The constant social changes over the decades have provoked radical changes today little is included with a standard model, the society was reinventing themselves, fashioning a new social and legal culture, based on the form of conviviality and affection, less focused in taboos and prejudice.
Today the reality is different, the woman came chalking up little by little the your space in the labour market and in the social environment, today it is also a provider of home, is no longer submissive to the wedding as at another time and in conjunction with the emergence of the divorce law of 1977 marriage is no longer something inseparable, which was a major factor for such incidence of divorces. With that, mothers and single parents is increasingly common, gay couples began having the right to adoption, among several other changes, which have caused family formations from affection.
Become impossible to disregard of such natural changes, the need arises for re-reading of the concepts and legal institutes. Soon, the Federal Constitution of 1988, took into account an expressly, other ways of considering a family entity, structures of relationships, which consists of the Union of people by virtue of living, whether by biological link common one that stems from genetics, not having any difficulty in your conceptualization, adoption, marriage, kinship or the affective relationship founded on possession of the child State. As regards family, milk (1997) believes that the brazilian Constitution recognized a trend that was already latent in the brazilian society, constitucionalizando values that were already present in the social environment, but they were dammed in the doctrine and in case-law country.
After this breakthrough, the family Institute was fully redesigned. The Higher Law, brought in your article and paragraph 226, the recognition of certain models of family entity and may be by means of religious marriage, stable, single-parent family, the one formed by only by one of the parents, and this for the living, education and creation of their descendants.
Also considering a way implied, the anaparental family, formed without parents and the family socioafetiva, the link created by the fetus. Constitucionalizando so the family law. Even States that there can be no difference in treatment between children on the basis of the principles of human dignity, solidarity and equal terms among the children. The Civil Code provides in your article Art. 1,596. The children, established the relationship of marriage, or by adoption, shall have the same rights and prohibited any discriminatory designations qualifications relating to filiation.
Recognizing the new family structures, opens a range for numerous models, based primarily on legal guardianship of affection, not having more marriage as primary means to start a family, with the dissolution of the marriage people have been given the freedom to connect again and form a new family, carrying all the baggage of previous unions including the children.
It is necessary to have a pluralistic vision of family, housing a variety of family arrangements, and should get the element that allows you to link the concept of family all entity relationships that originate in a bond of affection regardless of your conformation. (DAYS, 2013, p. 42).
Nevertheless, it is possible to assume that the affection with affection and care in coexistence, is in the center of family formation. A relationship based on primordial element that is love, parents dealing with a child from another relationship like son. In fact this affective relationship, gave to the theory outlines of parenting sócioafetiva, she does not depend on the unique biological relationship or civil ties.
The kinship socioafetivo collects, on the other hand, the social dimension of the phenomenon familiar in your expression to the medium in which the family falls community and, on the other, the affective dimension, which is reflected in the living centered on solidarity between the subject of the relationship. (FACHIN, 2012, on line).
For affection, we have as a concentrated element presumption in demonstrations of love that a human features you love, with feelings of tenderness, affection and sympathy that founds the family bond. Currently the emotional relationships tend to mark out the family projects and lead to the assumption of responsibility by the Constitution. "Affectivity has assumed steadily increasing importance in family matters, even in traditional family turned out to be considered worthy of attention and effective exercise '' (CALDERON, 2013. p. 204). In this perspective the affection became a fundamental legal principle.
The principle of affectivity has a double face whose understanding helps in accurate perception of your sense. The first of these is the face of legal obligation, aimed at people who have a bond of parenthood or of conjugality. This face of principle binds such people the reciprocal representative conducts affection inherent in such a relationship. The second facet of the principle is to face family link-generating, geared towards people who do not yet have a link recognized by the system, for which the incidence of affectivity represents a family bond between those involved. This includes the notion of ownership. That is, the presence of a given factual set does affect the principle of affection in order to set up, from then on, a family bond. (CALDERON, 2011, online)
Have the affectivity as principle is fundamental respect for human dignity, that guides the family relations and family solidarity. Are identified in the Constitution four essential points of principle of Affection: a) the equality of all children regardless of origin; b) adopting, as with equal right affective choice; c) the community formed by either parent and their descendants, including the foster with the same dignity of the family; d) the right to family living as absolute priority of children and adolescents.
On such grounds that protect the affection, parental age affective partner generates a space for the realisation of membership socioafetiva described by the will to love, to exercise a paternal or maternal condition. In which I did the same condition the State of biological son. This type of membership is based on protection of the human personality, protecting identity formation and personality of the child, have the need to create and maintain a family stability causing it to assign secondary role to true biological.
The Civil Code in your art. 1593, implicitly brings a breach for the recognition of socioafetiva affiliation, in the words of Maluf and Mackin (2016, p. 4) "when using the term ' other ', opens space for the recognition of parenting socioafetiva, in which, although there is blood ties, affectivity, equally or more recognized and valued today than the inbred '' link.
Considering that the kinship can occur of natural or civil order and not always the affiliation is recognized civilly, the possession of the child state that characterizes the legal world socioafetiva membership. We already have concrete cases arising from the emotional recognition adopted by jurisprudence such as the civil appeal No. AC 70040743338 the Court of Rio Grande do Sul.
CIVIL APPEAL. NEGATÓRIA OF FATHERHOOD. PREVALENCE OF SOCIOAFETIVA RELATIONSHIP DEMONSTRATED. DISESTABLISHMENT OF THE CIVIL REGISTRY. DISMISSAL. Demonstrated the existence of socioafetivos links in law between the parties, the disestablishment of the civil registry. Despite the absence of biological connection, there is the socioafetivo link, shown by the relationship of affection, this being the decisive aspect for the recognition of the State of affiliation.
Possession of the child State is evidenced through the day-by-day built the base of affection for the way that it is the child, care, such as financial assistance, psychological, moral and affective, also including the way makes this condition public membership towards society to believe that in fact it exists. Taking into consideration the last name of this father gave son, all via, some scholars believe that this element, can be dropped by has no great value in the configuration of the possession of child State, can be configured without using registry . Therefore, for the characterization of the State of possession of son is necessary to the manifestation of these three elements to be configured, deal, fame and name if possible. Fachin (2012, on line) means that:
The Office that is handling, for your characterization requires are present in this case certain qualities, which offer security in the affirmation of State ownership. There is to be the child State, i.e. the State ownership must be objectively visible in the social environment. Another necessary quality is continuity, i.e. must be a certain length of time to develop stability. For ultimate, these facts notorious and continuous should not generate misunderstandings about the membership.
Taken into consideration that the affiliation not socioafetiva can be seen through examination, it becomes a little more complex and elaborate to be proven. Therefore, it is necessary, to prove the existence not only of the elements constituting the possession child State, but you have to prove the presence of will also no doubt parts of being father and son, and the prevailing affection.
The recognition of these requirements occurred in V Civil law, Journey performed at the CJF in 2011:520 Statement: Art. 1,601. The knowledge of the lack of biological ties and the possession of State of son prevent contesting paternity presumed and Utterance 519: Art. 1,593. The judicial recognition of the bond of kinship because socioafetividade must occur from the relationship between father and son (s), based on State ownership of son, to produce personal and property effects. (SILVA, 2016, on line).
To this end Viana (2014, p. 193) States that:
The possession of child State is, in fact, essential requirement for paternity socioafetiva configuration, however is not the only one. Imperative you do assess carefully whether there is the decisive factor for establishment, which is: will. So, present the requirements have worked – fame, treatment and behalf – and the willingness to be father and son, based on mutual recognition and exercise of the paternal function will be faced with a real paternal-filial relationship.
Anyway, the socioafetiva membership embraces all rights and obligations originating with your recognition, that is, starting from the idea that the paternal relationship reflected in the construction of the personality and identity of the child, after all a mixer, a life formed in this family bosom for his well-being and protection of legal certainty, the doctrine and jurisprudence slowly comes to understand the impossibility of the disestablishment of paternity based on socioafetividade. So this is the judgment delivered by the Superior Court of Justice (STJ) during the trial of special appeal No. 1059214-RS, 2008/0111832-2, in verbis:
Digest: FAMILY LAW. NEGATÓRIA ACTION OF PATERNITY. DNA TEST NEGATIVE. PATERNITY RECOGNITION SOCIOAFETIVA. REFUSING THE APPLICATION. 1. In accordance with the principles of the Civil Code of 2002 and the Federal Constitution of 1988, the success in action paternity negatória depends on the demonstration, both, the absence of biological origin and which has not been formed the State of membership, strongly marked by socioafetivas and relationships built on familiar coexistence. It is worth saying that the claim focused on the challenge of fatherhood cannot thrive, when founded only on genetic origin, but open conflict with fatherhood socioafetiva. 2. In this case, the ordinary instances recognized paternity socioafetiva (or the State of affiliation), always exists between the author and those required. So, if the statement made by the author during the record was untrue regarding the genetic origin, certainly not for the purpose of establishing with the affective links State own infants of son, truth itself enough to maintain the registration of birth and to the removal of the allegation of falsehood or error. 3. Special feature provided.
This above, it is concluded that the bond is irrevocable and inalienable, it is the one who recognized like son can't break that bond at any time after the establishment of the socioafetividade. However, specific demand for the disestablishment of paternity socioafetiva, only in specific cases that have not yet implemented the requirements of existence of such paternity, already mentioned. This time, by ensuring access to justice, of subjectivism and law of Civil procedure as appropriate for the judicial procedure in the case, performing one of the functions of the State which is the judicial function directed, organized and carried out by the judiciary through the Judge. The Court of Rio Grande do Sul already delivered a decision about the matter
Appeal. NEGATÓRIA OF FATHERHOOD. REVOCATION OF RECOGNITION OF SON. ADDICTION WILL NOT PROVEN. IRREVOCABILITY. PARENTING SOCIOAFETIVA CONFIGURED. 1. The voluntary recognition of paternity is irreversible and irrevocable, and does not give in front of no biological link, because the revelation of genetic origin, by itself, is not enough to disestablish the link voluntarily assumed. 2. The legal relationship of filiation also built from affective ties and solidarity among people genetically establishing links that strange at all match those that exist between parents and children related by blood ties. Art intelligence. 1,593 of the Civil Code. Precedent. Denied dismissed.
2. Family recomposed
The marriage with the so dreamed of until death do you part to given time had as purpose the maintenance of equity was the main basis of this link, sure the affection was not prevalent for this family, and this way the unions became more enduring and stable, the family was seen as well explained in the words of Perrot (1991, p. 104). "The family, as a network of people and goods, was a name, one blood, one material and symbolic heritage inherited transmitted, a stream of properties that depended on, first, the law ''.
With the social transitions equity ceased to be the essence of personal relationships. The ease to discard marriage and freedom to form a new Union, enabled a fact often in society the situation of new families with a history of another Union, goods and children. With that, the bond became essential requirement to the configuration of the new families.
About this topic reports a 2010 Census research, published in the magazine Veja, on the detailed situation of couples formed by divorced people and homes where the children are only one of the spouses.
[…] The composition of couples with children still represents the most Brazilian families, despite the significant drop in that slice of the population: 63.6% reduction was recorded in 2000, to 54.9% in 2010. The census also shows that, although the singles still respond for more than half the population, 55.3%, among those with 10 years or more, was among the divorced the greatest increase observed a decade to another: the index nearly doubled the lifting made in 2000 to the current, from 1.7% to 3.1%. Coupled with the number of desquitados and legally separated, this group reaches almost 5% of Brazilians. […]'' Art 2010 Census-Families (see) ''
[…]According to the IBGE (Brazilian Institute of geography and statistics) obtained at the last census conducted in 2010, 16 percent of Brazilian families are reconstituted families, "2.5 million of stepchildren live with stepfathers and stepmothers, 36.4% of unmarried couples even in civil Union was not in the religious, 3.1% of the brazilian population is divorced, 881,000 homes have men living with children, no spous[…]e.
After a separation, the parents if you reorganize into a single mold, being composed of one of them and your offspring, that as a result of the need of human beings to relate affectively, provides once again the establishment of a new entity the so-called family recomposed. Now there is new relationships, new parental link, new siblings, and the effigy of a stepfather or stepmother, who will fill the deficit of this biological father or mother within the family framework. This relationship created moves fully by affection.
The figure of the family recomposed or constituted is born of this phenomenon, given the increase in separations, divorces and dissolutions of stable Union. Enables the design of others, which were disrupted by understand that there was more to keep that core. Giving rise to various arrangements, requiring only the presence of children, which is only a couple or pair of a and. Upon entering this new family sphere becomes as popular in "yours, mine and ours". Interesting to note that the recomposed family can either be formed by parent guardian, as for the one who has not.
This concept includes not only the Group integrated by the parent who has custody of the children of a previous link, but also the conformed by the parent who does not have, because the law, regardless of coexistence, it is considered a relative by marriage, straight, descendant of the first degree, the child of the spouse from a previous Union (CC, art. 1,595, 1). (GRISARD SON, 2008, p. 257).
In the family of origin, the ties of kinship and roles are well defined, father, mother, brothers, grandfathers, uncles, cousins. In the reconstructed, over time and in the course of living ranging building their roles, so will finalized and set its rules and functions, this causes them to delay a bit to solidify. Once, connect through the love, affection, desire to watch and such ties are duplicated, two fathers, two mothers, half-brother, other grandparents, uncles and cousins, such facts, extend the legal repercussions as regards parental roles and exercise of power familiar. Affectivity shifts if biological links and registral, coexistence of possession of the child State.
Grisard Son (2008), follows explaining the relation existing in the reconstituted families: the new husband of the mother's name is stepfather, the new wife of the father's name is stepmother and the child of the spouse or partner is called stepson or stepdaughter. Relationships that are established between a spouse or partner and children on the other constitute a kinship by marriage, in article 1595 diction of the Civil Code. Running from the law, because, this relation, it is natural and logical to derive the new parent denominations in order to stepfather, mother in order to stepmother and son or daughter stepson or stepdaughter in order to.
For the sake of guardianship of this family setting the magna carta of 1988, in conjunction with the Statute of the child and adolescent, allowed a full State for amparo with the kids, in that familiar framework. Passing the parents to have more duties than rights therefore have the responsibility of being a father or mother has moved beyond a moral obligation but also cool. Safeguarding the best interests of the child, given that the affection is the centerpiece of social change, and taken as a constitutional principle.
From the moment that the son was the son of another person in a family structure, assuming ownership of the child State, highlighting the role of Dad, the recognition of parentage raises all obligations to this son, because the legislation sought to protect the f Grommet from a primitive family, so that if another rupture occurs in this relationship or death, this is supported not only in the duties as the duties of affective assistance and also accumulate the biological and emotional paternidades.
3. Multiparentalidade
In this context of families United by simple affection, we have several family stereotypes, the plurality of parental ties triggered by the merger of biological and emotional links. Makes it necessary to establish new organizations in the planning, in the interests of legal certainty and protection. Front of the Constitution of 1988 large change was brought by the letter to the family and especially the principle of dignity.
The family is, effectively, sociological reality, above the law, not being possible to imprison her to concepts or closed models and formally established. This family as sociological reality is plural, as plurals are affective aspirations establishing the family phenomenon. (FACHIN, 2012, online).
The protection these relationships by promoting this principle which can be set to a value that is intrinsic to the human condition, regardless of origin, financial condition, sexual orientation or any other attribute. Days (2011, p. 61) sets the dignity as:
The principle of human dignity is the most universal of all the principles. Is a macro principle which radiates all other ("…). Is nuclear value of constitutional order, responsible for calling despatrimonialização legal institutes, who turned all the personality of individuals.
About this principle, Teixeira and Rao (2010), understand:
The principle of equality guaranteed in the Constitution operates on two different plans. On the other hand, before the legislature, preventing it from configure normative assumptions in such a way that separate treatment to people who, from all points of view legitimately adopted, find themselves in the same situation, or to put it differently, preventing confer relevance to circumstances which cannot be taken into account by virtue of systematically built on Constitution bans. Or why not keep any relationship with the contents of the regulation, which, to include them in the event regulations, incurs arbitrariness and is therefore discriminatory. On the other hand, equality before the law requires this to be applied equally to all those who find themselves in the same situation, without the applicator can establish difference in reason people or circumstances that are not covered in the standard.
Beyond the principle of dignity, the warmth also valued as a guiding principle of family law, touches on affectivity as nuclear element of the Office family, breaking the prototype I just valorava the relations of consanguinity.
Tartuce (2014, p. 86) explains that the affection is currently seen as the main ground of family relations. "Even with the expression of affection not larger text as being a fundamental right can be asserted that it stems from the constant appreciation of human dignity".
Farias and Rosenvald (2015, p. 120) also hold the affection as legal tutelável value. "Is that understood with an entity designed to promote the development of the personality of its members, bring the family with you a new feature, now based on affection and solidarity."
Soon, the blended families affect symbol, reflecting the freedom of creation and dissolution of conjugal entities, to form new bond of coexistence, affective ties are born of commitment, of tenderness, of love, of care in which the matter respecting each in the papers that they fit that affective family. Common situation on a daily basis. Inserting a new father or mother in the life of this child, so that the new link does not delete the first, so that the regulation of the coexistence of related and biological parents became necessary, to prejudging the rights and duties of each to the membership development KC facility management ™ figure of multiparentalidade.
Cassettari (2015, p. 169) to multiparentalidade can exist in several opportunities "such as in cases where it is possible to add biological parenting and socioafetiva, without a delete the other". She appears when there are clumping of the biological and emotional links where there is a harmonious society on behalf of the interests of the child or adolescent. In which have mutual shareholdings in the life of this son shared. But they all cost of family power in duplicitous. The trial of the Court of Justice of Roraima to 2014 below brings us a parameter of how has been dealing with the matter, in verbis:
CIVIL LAW. FAMILY LAW. Appeal. ACTION FOR ANNULMENT OF REGISTRATION OF BIRTH. DNA TEST. BIOLOGICAL FATHER THAT VINDICA FATHER REGISTRY REGISTRY CANCELLATION. DELETING THE NAME OF THE PARENT REGISTRY. APPELLATE INNOVATION. INCLUSION OF THE SUBJECT'S BIOLOGICAL FATHER FATHER REGISTRY. GREATER INTEREST OF THE CHILD. MULTIPARENTAL FAMILY. POSSIBILITY. REFERENCED RESOURCE. REFORMED SENTENCE. 1. 1. Safeguarding the best interests of the child, as well as the existence of biological paternity the applicant, without disregard that there is also parenting the parent registry socioafetiva, both of which encourage an environment in which the minor can freely develop your personality, recognize the biological fatherhood, without, however, undo the legal link from the socioafetiva paternity.
Almeida and Rodrigues Júnior (2010, p. 382) confirm this thought and claim that in summary:
It seems permissible duplication of maternal or paternal ties-branches, especially when one of them is socioafetivo and arise, or in addition to the biological or legal link set, or in advance the recognition of paternity or biological maternity.
The Association of links has become relevant, in such a way that affective parents conquered possibility of inclusion of your last name in the registry of child affective, since there is no prejudice to their own nicknames, there is agreement of the father or mother in order and be the judicial order. The judgment of the Court of Justice of São Paulo, dealt with the following theme:
RECTIFICATION OF CIVIL REGISTRY. REQUEST FOR INCLUSION OF THE PATRONYMIC OF THE AUTHOR'S STEPFATHER. SENTENCE DEEMED EXTINCT THE PROCESS. REQUEST LEGALLY POSSIBLE. APPLICATION OF ART. 57, paragraph 8, of the LAW of PUBLIC RECORDS. In the event of the record, the author requested the rectification of your civil registry for the inclusion of the patronymic of your stepfather, for having been the person who assisted morals and material from your young age. The immutability of the name and the surname of the family is no longer treated as absolute rule. Both the law expressly as the doctrine, seeking to meet other social interests most relevant, admit your change to some hypotheses. So, in spite of the Public Records Law provide for in art. 56, that the person concerned only after the civil majority, you can change the name, since that will not endanger the family nicknames, the minority, by itself, does not obstacle to desired change, since fully justified the reason for change. "The stepson or stepdaughter, with measurable and reason in the form of § § 2 and 7 of this article, may apply to the competent judge who, in the registry of birth, is the family name of litigant your stepfather or stepmother, provided there is your express agreement of these without prejudice to their family nicknames "(art. 57, § 8 of law 6,015/73). The request made by the author is legally possible.
With the enactment of law No. 11,924/09, which reshaped the Public Records Act to authorize the inclusion of the stepson's family last name stepfather or stepmother. § 8 of art. 57, about the name change, now has the following text:
Art. 57. § 8 the stepson or stepdaughter, with measurable and reason in the form of § § 2 and 7 of this article, may apply to the competent judge who, in the registry of birth, is the family name of litigant your stepfather or stepmother, provided there is your expressed agreement of these, without prejudice of their family surnames.
This is a diploma that gives the relative stepson/stepfather full relevance in the context of family law to allow such figures share one of the most important signs of externalization of a familiar entity: the family name. With the possibility to share the same family name, it is acknowledged that his stepson and stepfather can integrate the same family structure, having each other family relationships. A step ahead of the idea of the stepfather as a relative by marriage.
What about an evolution in these harvest, and the formal possession of the child State. How have Teixeira and Rao (2010) the law authorized the cumulation of the patronymic name – by definition, social projection of personality – reflects exactly the family state of the child or adolescent, that is, if two or more persons perform parental roles in your life, that the name can externalize their various States of affiliation.
Certain is that when drawing up the aforementioned standard, Rep. strengthen ties of family sócioafetiva, and give right to declare stepson in highest level your affection, love, by your stepfather or stepmother. Such regulation would bring harmony to these ratios, dropping to the ground the negative image of stepfathers and stepmothers.
So, has the possibility of the child record the presence of two fathers or two mothers, in cases involving conflict of links, not reasonable to impose the prevalence of a paternity to the detriment of another, the best way to follow is the multiparentalidade, given by the cumulation of paternidades, because if all are equal before the law is not sure to make distinction between father and son, taking care the affection for a or to another, since there is importance of legal value for both parties (CASSETTARI , 2015).
4. The legal recognition of multiparentalidade extensions
As to the effects generated outside the recognition of multiparentalidade, we have reflexes in relations of kinship, once, that until the fourth degree and in a straight line is produced side effects and legal equity involves the whole family of birth parents and affective, but the provisions expressed in the law governing the family Institute.
As well as in natural, the socioafetivo has the same effect, there may be the family name registry and impediments in the Middle, you fall right and civil obligations as food, succession, and even social security that so must be thorough in recognizing the socioafetividade as it affects third parties reached by the duty of solidarity intertwined in relations of kinship.
As the principle (d) expressly in article 227 equality, paragraph 6 of the CF. "children, established the relationship of marriage, or by adoption, shall have the same rights and prohibited any discriminatory designations qualifications relating to membership". This exposed, regardless of the form of recognition of children and may be natural, affectionate or multiparentais, have the same rights.
As for the succession law, there may be no legal difference on how these relationships since, being recognized the multiparentalidade, at the time of transmission of inheritance, is formed the line of succession, call the son is required of each heir multiparental father or mother who has.
Silva (2017) that particular person not expressly recognized as son for eventual relative socioafetivo, if this took care of this individual publicly, without any formality, supplying you with all your needs, there is no doubt that the parent-child relationship or mother/son is present. Consequently, once this child State, the succession law is indisputable.
The kinship socioafetivo covers the same effects of inbred link, in life-rights of custody, right to have the company of the child or commonly called right, duty and duty education support or maintenance obligation-wills- hereditary rights, including the right to legitimate. (SILVA; Tavares, 2015, online).
Whatever the nature of the affiliation, the children have the same rights and duties, so the succession on the part of an individual who became son due to affective ties created, if possible before the equality of membership. The civil code guarantees this equality in your article 1,835: "on the line, the children follow a head, and the other descendants, a head or strain, as find or not to the same degree.".
Silva (2017), an individual who has, for example, two parents, cannot be deprived of their rights to inherit property, since, in the eyes of the legal system itself, the affiliation is absolutely legitimate. In addition, limiting the succession law of this individual would hurt the law itself, featuring a sort of discrimination absolutely unfounded. However, we must point out that the individual that has multiple parents or mothers, is subject to the right of withdrawal, that is, it has the full right to inherit all the fathers and mothers, but also has the right to renounce that heritage.
However, the second argument, above, which leads to the denial of paternity socioafetiva response, not help the interests of the heirs of the deceased materials so that, as a general rule, if the parent registry not challenged in life, there is no way to undo the Inheritance link. (TAVARES, 2016)
It should be stressed that the renunciation of inheritance is subject absolutely distinct from any legal prohibition, no legal system prohibits a single individual to inherit assets from multiple fathers or mothers, but this individual is ensured the right of imotivadamente, renounce this eventual succession.
As for the food, must take into account that the purpose is to provide the essential to the livelihood of the person, and may not enrich that makes use of them. In this situation, the child's paternal branch may require food of any one parent or both at the same time, so that each parent contributes according to your ability and in a manner proportionate in view of the principle of best interest always and the possibility of Dad, just to contribute to your development.
Following the same direction, the same way that a father should provide food for their children, either one or ten, in multiparentalidade, the children shall provide to parents the food if you need. Following the thought of Monteiro (2007) are also entitled to food the parents before the children. It would be really scandalous thing to see a the son deny maintenance to the father, so to speak, the death of who gave you life.
In art. 1,696 is willing that the right to maintenance is reciprocal between parents and children, as well as relapse in other ancestors, according to the degree of relatedness. The same applies to art. 1,697, regulates that in the absence of the ascendants, i.e. biological relatives, civilian or socioafetivos, the maintenance obligation is transferred to the descendants who keep, obviously, the same type of relationship that the ancestors mentioned in art. 1,696.
The Court of Justice of Minas Gerais has recognized that the right to formal equality and material present in the Federal Constitution must permeate the existing perfilhação in blended families, considering how children all that effectively behave as parents and children.
In short, the principle of the supremacy of the interests of children and adolescents and the predilection of the Brazilian legal system by true socioafetiva, the maintenance of the maintenance obligation of the parents is ensured not only by the seat of the constitutional Article 229, as also expressed in the Civil Code in your art. 1,634 and in the Statute of the child and adolescent in your article 22. Thus, with the dissolution of the conjugal union there is no possibility of paternity waiver socioafetiva. You can't talk about distinction between biological children and affective, and assured the same rights and duties towards their ascendants and descendants (SANTOS, 2017).
When referring to multiparentalidade to the pension law, Santos (2017, on line) believes that "these can be observed when your recognition, since, in such cases, the child becomes dependent on at least three people, for example, two parents and a mother ".
The child is entitled to receive affective of cumulative form at least three death pensions. Regardless of the system of social security that the parents belong, if all assured reach died. Although the legislation is silent as to the hypothesis of overlapping of such a benefit in case of death of the parents.
Art. 16. Are entitled to the General Social Security Scheme, provided that the insured person's dependent:
I – the spouse, companion, the companion and the son not emancipated, in any condition, under 21 (twenty one) years or invalid or that have intellectual disabilities or mental make absolute or relatively unable, so declared judicially.
The legal effects concerning recognition of paternity socioafetiva bring consequences not only the legal field as to society in General, because the extent of the emotional family reflects also in public law, when this reaches the right with the application of the ineligibility election for socioafetivos children. The Federal Constitution of 1988 provision in your article 14:
Article 14: § 7 are ineligible, in the territory of jurisdiction of the holder, his spouse and consanguineous relatives or the like, up to the second degree or by adoption, the President of the Republic, the Governor of the State or territory, the Federal District, the mayor or the there is replaced within six months prior to the election, unless already holder of elective mandate and candidate for re-election.
5. The vision of the Supreme Court on the subject
Personal developments imposed determined intervention of doctrine and the courts to adjust and regulate the reality of the society that is in constant transformation. Division of biological versus affective paternidades deriving multiple relations affections. "These new family disputes reflect some of the challenges that the multiple interpersonal relationships feature lawyers. In the complex, fragmented and today's scenario, the possibility of plurality of parental bonds is a factual reality that requires a legal accommodation "(CALDERON, 2017, ON LINE).
On this basis, the Federal Supreme Court, in the headquarters of General Repercussion No. 622, with the report of the Minister Luiz Fux, signed by a majority of votes, the following thesis: "fatherhood socioafetiva, declared or not on public record, does not prevent the recognition of the concomitant affiliation link based on biological origin, with the own legal effects ".
The thesis of General Repercussion No. 622 is explicit in stating the no prevalence of affective and biological paternidades being fully possible to accumulate the two, allowing the existence of two legal parents. To adjust the divergence of links we have a head start in planning. It allows you to highlight three main aspects. The legal recognition of affectivity, socioafetivo and biological link in equal degree of legal hierarchy and one of the major advances made by the Supreme Court, certainly the possibility of express legal pluriparentalidade.
The possibility of two concomitant parents as the object of intense debate during the plenary session that dealt with the theme, face a divergence of the Minister Marco Aurélio, but remains approved by a large majority. This made clear that such a thesis hosts the legal possibility of multiparentalidade. The Minister Luiz Fux is firmly in the direction of recognition of pluriparentalidade, with a comprehensive study from the comparative law. At any given moment, says: "in the same way, nowadays, descabe you want to decide between affective and biological affiliation when the best interest of the descendant is the legal recognition of both links. (…) So is accuracy recognition of dual parenting ".
These situations of maintenance of two fathers or two mothers have being object of some judicial decisions and were appearing with intensity in the doctrine. There is even a statement of IBDFAM approved on the subject: statement No. 09-"the multiparentalidade generates legal effects", the X Brazilian Congress of family law.
Another point that was recently discussed by the Supreme Court, was about the question of paternity socioafetiva exclude the responsibility of the biological father. The Plenum of the Supreme Court, held that the existence of paternity socioafetiva does not exempt from liability the biological father.
The Minister Luiz Fux, Rapporteur of the RE 898060, believes that the principle of responsible parenthood requires that both the bond, as those originating from biological descent, should be welcomed by the law. According to him, there is no impediment of simultaneous recognition of both forms of paternity, since this is the interest of the child. For the Minister, the recognition of the jurisdiction of various family models of traditional design, does not allow to decide between affective and biological affiliation when the descendant's best interest for the legal recognition of both links.
Fatherhood socioafetiva, declared or not on public record, does not prevent the recognition of the concomitant affiliation link based on biological origin, except in cases of legal abandonment Scouting volunteer and affective kids ' indispensable in relation the parents ". (STF, RE 898060, ON LINE).
In analysis of the General paragraph 622 Repercussion on the legal relevance of socioafetividade, taking into account not only the affection itself, which is intimate and personal feeling, but external in social environment, recognizing that there is between the hierarchical paternidades and embracing the multiparentalidade are advances gradually with the doctrine and the jurisprudence will perfecting, analyzed the concrete cases and found that it can be improved. The thesis adopted by the analysis of General Repercussion No. 622, represents a bold step and decided towards the consecration of a family law effectively plural and democratic Brazil.
Based on the case law of General Repercussion all over Brazil, go judging based on better understanding with the emergence of the individual case. Because it is a complex yet matter that slowly has been studied and the perfeiçoada for not appearing misfortunes to recognize and regulate such relationships.
In the State of Tocantins, in the town of Paraiso, located about 75 kilometers of applause, there was the first case on the matter, the trial in the Supreme Court, who admitted the coexistence of socioafetiva and biological paternity Recognizing the multiparentalidade, in which the Brazilian Institute of family law, acted as amicus curiae, begins to link decisions of Brazilian courts. Was given the addition of the name of the father socioafetivo in the civil registry. Now, therefore, the author documents the action will display the names of both parents. The decision is a pioneer in the State of Tocantins.
The judge Océlio Noble da Silva in your decision states that the father socioafetivo and his daughter were able to prove, in action, the reciprocal feeling daughter and father, manifested through affection, love and care material and immaterial. According to him, "is lawful claim of applicants who claim and prove the existence and enjoy public of father and daughter, regardless of biological link. Are data already in your social identity, and the right only recognize and protect ". It was also determined to change the surname of the author, as well as the inclusion of the respective names of the paternal grandparents.
I was very happy when I heard about the multiparentalidade decision in Paradise, which is quite right. In my opinion, Dr. Noble Océlio da Silva, with a humanistic vision of family law, made the first move in Tocantins State, soon after the approval of the thesis of General Repercussion 622, so that not only this, but other decisions see parts of a man Eira, not focusing only on the letter ' of the law, "cold (opinion of advocate Alessandra Muniz, President of IBDFAM do Tocantins).
According to Alessandra Muniz, a scenario in which there is the possibility of plurality of parental links, law operators must be attentive to reality, bringing up a legal accommodation that each case requires, "not forgetting, in though, that in spite of such a change in family dynamics, the affection and love will prevail ".
Muniz, who is in favour of equality of parenting in relation to biological socioafetiva, explains that this is a sensitive issue, "break old dogma, among them that each person has a mother and a father, what for a modern and dynamic society is no longer as possible, given the various family arrangements in which affectivity must predominate.
In the fight for the recognition of multiparentalidade "the IBDFAM has your primary role in the recognition of the multiparentalidade, acting in action (RE898060-SC) as ' amicus curiae ' in recent trial in the Supreme Court, which makes it a qualified instance for debate of the most diverse and controversial issues in the area of family law, "says Alessandra Muniz. To the lawyer, the LAW (IBDFAM) is always present to help in decisions of complex issues, and the arguments raised by the Institute are well accepted and cited in various legal decisions throughout the Brazil.
On the thought of Alessandra Muniz, the decision of the Court of Tocantins consolidates the socioafetivo bond in equal degree of legal hierarchy, as well as the acceptance of the thesis of multiparentalidade, two large flags raised by IBDFAM, widely discussed and materialized through the analysis of General Repercussion paragraph 622.
6. Adversely multiparentalidade recognition
The recognition of multiparentaldade may lose a little focus that would regulate the affective ties, with some scholars such as Paul Lôbo, believe there may be a "race" to the courts for the quest for rights.
Will be inevitable. Unfortunately, the patrimonial issues will pass in front of bonds of affection. Even in relation to cases already judged definitely, as there is wide understanding on the relativization of res judicata in family relations, which would operate according to the Clausula rebus sic stantibus rule. Law (IBDFAM, 2016, ON LINE).
Paul Lôbo highlights some problems may arise from this decision, explains that in addition to the problems arising from the sharing of food pleaded with her son to both parents, there will be issues relating to joint custody and about the powers family reaches of each. "In the case of conflict of decisions about the education of the child, for example, there is no solution in sight, except the generic application of the principle of best interest" law (IBDFAM, 2016, ON LINE).
Once, if you have the possibility of duplicitous law, so the son will be affective heir of both parents equally and rights compared to other heirs needed. Have double right to inheritance, the advantageous situation compared to their brothers socioafetivos, on one side, and biological brothers, on the other.
With that, the position adopted by the Supreme Court in theory, comes the fear that may arise demands with patrimonial nature of mercenary. Soon it will be for the judges and courts, as always, separate the wheat from the chaff, to prevent the exercise of a subjective legal situation in your order with modeling for evaluation-normative.
The challenges are many and legal operators will work to resolve these issues, always seeking the best interest of the child and seeking to avoid the diversion of multiparentalidade purpose, applying the principle of good faith and analyzing the best possible solution for each case.
Conclusion
It is concluded from this study that over time the family Institute has been shaping and facing new mishaps is by social acceptance either by lack of regulation. The traditional family comes losing power and in full sec. XXI the affection becomes the center of family formation. Currently she is seen pluralist form, admitting various family arrangements, founded on relationships of affection.
The emergence of blended families is apparently inevitable in the face of current society, for being the most frequent family model on social reality, in this family model the figure of multiparentalidade in which is characterized by the possibility of coexistence of the two types of biological parentage, and socioafetiva,
The multiparentalidade in front of each concrete case is regulated in the legal system, every fact that seeks the judiciary, allows it to bring new scope and protections to those emotional relationships. The recognition of non-hierarchy of biological and emotional paternidades, supporting obligations and duties of both paternidades, 622, General Repercussion thesis is a major breakthrough achieved in the reasoned dignity of the human person, in the principle of affection and the principle of the best interest of the minor.
Because it is a membership that needs to be shown the bond of affection and the will of the parties, if necessary a little more caution, to not emerge out of purpose demands the recognition of affection, discriminated against the interest of illicit enrichment, that can be a problem when it comes to the subject of duplicitous double duties as soon the paternity benefits, inheritance and several other rights.
So Unfair would be understanding, the paternal bond whatever branch is responsible for the care, psychological training, education, and even giving the other person, emotionally, gives the child into it, that for many times rejected by their biological parents, a structured, family comfort and security necessary for your development.
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[1] Law school academic Catholic College of Tocantins (FACT).
[2] Doctor in law from Pontifícia Universidade Católica de Minas Gerais. Professor of law of the Catholic College of Tocantins (FACT). Lawyer.
