An important issue to be discussed within the scope of international family law in Brazil is the difference between parental pawers and custody rights of minor children.
Having domicile in different countries is not a reason for the dissolution of the family bond and the geographical distance does not change the right or way of exercising the right of parental authority. This right, in principle, must be performed by both parents in equal conditions, even if the child lives with only one of them. That is the understanding of Brazilian law and jurisprudence.
Custody can be understood as a right and at the same time a duty of parents that relates to an immediate commitment, surveillance and protection of the children’s interests, when they do not have the age and discernment to do them for themselves yet, ensuring the educational, material, physical and psychological development of children.
Whether the child is a foreigner or a national, the Brazilian legal system has instruments to protect these rights, which must always be articulated based on the best interest and the full development of minors. Among they Civil Code, the Statute of the Child and Adolescent and the International Convention on the Rights of Children of 1989.
An initial question can be regarding the establishment of domicile and possibilities of relocation of the minor. The parent who does not live with the child has the same rights to have an opinion and decide about the residence of the children, visitation rights, the guardian-parent is always responsible for sharing information and decisions, valuing, this way, the continuity of relationships.
It is also up to the parents to share care and deliberations regarding religion, physical and educational occupations, cultural activities and health treatments – however minor or more routine they may seem, they must always be considered under joint responsibility.
In cases when the parents have different nationalities or when the children have been relocated to a country different from their origin, the duties/rights of parental authority will also include ensuring that they develop themselves in both cultures, preserving the customs, practices, knowledge and languages spoken.
In all cases, if there are conflicts of interest of the parents in important decisions in life or in the exercise of custody of the children, the best interests of the child must always be prioritized, a principle that governs the legislation and the performance of judges and lawyers in family’s cases.
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