FILIAL AFFECTIVE ABANDONMENT:JUSTICE FOR PARENTAL OMISSION OR PATRIMONIALIZATION OF AFFECTION

Abstract

Filiation is a legal institute present in Family and Succession Law, which establishes a parental relationship, composed of child and the person with parental authority, which may be conceived through biological or genetic means and through socio-affection. It is uncontroversial that regardless of origin, necessarily by express legal determination, parents need to fulfill the duty of care, which is instrumentalized by affection. In this perspective, in the event of non-compliance with this determination of the Brazilian legal system, civil liability will be applied for the omission of the duty of care, as well as parental negligence, which is the main discussion of the judgment handed down by the Superior Court of Justice (STJ), in Special Appeal (REsp) no. 1.159.242 – São Paulo (SP). The aforementioned decision brought multiple perspectives on parental responsibility in the face of non-assistance in the moral care of the child, with the characterization of moral damage in re ipsa, in which it is not necessary to demonstrate actual damage and guilt, since that these are presumed. However, the guiding problem of emotional abandonment would be whether in fact emotional compensation would be objective in the moral compensation of the abandoned person, or would it be a way of turning the disaffection or lack of affection into an asset. From this perspective, this academic work will present, through analyzes of current national legislation, doctrines and jurisprudence of the Court of Justice of the State of São Paulo, nuances and details that permeate the controversies of filial abandonment.