A guarda compartilhada como regra sob a perspectiva civil-constitucional

Abstract

In the past, the custody of a child generally used to be awarded to the female party in cases of couple separation, because of the cultural division of parental roles considered typical for each gender, which leaves the woman in charge of most care. However, as women began to participate in public spaces, that assumption has been challenged in order to keep both parents engaged in the raising of children. Therefore, currently, there is a new type of custody - joint custody. Nevertheless, there are differences in terms of case law and doctrine in its application when there are conflicts in the family core. Thus, the research question of this study is: is joint custody an element for co-parenting in contentious divorce, and does it respect the principles of prioritizing the interests of the child and establishing gender equality? What position does the Judicial System in Rio Grande do Sul take on the issue when we consider its decisions? For this, we use the deductive approach and methods of historical and monographic procedure. For better development, the study is divided into two major parts. The first examines the landscape of family law in Brazil, the guiding principles of joint custody, and the situation of women’s rights in the light of the evolution of the Brazilian society up to now. The second part addresses family power and the position of the Judicial System of Rio Grande do Sul on joint custody, even when both parties do not reach a consensus, since, in such cases, as we concluded, joint custody is not frequently applied, and, as a consequence, the preferred custodial parent is usually only the mother