The (in)applicability of joint custody of children and the practice of parental alienation in cases of domestic violence against women

Abstract

Domestic family violence results from gender-based violence and has serious consequences, placing women in vulnerable situations and enabling their victimization. Beyond criminal implications, domestic violence also affects family relationships, especially in cases involving child custody. Currently, there is a noticeable inefficacy in judicial decisions regarding shared custody in cases of domestic violence, as, in certain instances, aggressors are favored, leaving victims unprotected under the law. In this context, the following question arises: to what extent is shared custody advisable in cases where there is evidence of domestic and family violence against women and parental alienation behaviors? This study investigates the relevance of shared custody in cases of domestic family violence and parental alienation practices. Specifically, it examines domestic violence from a gender perspective, understanding custody arrangements under Brazilian law, the concept of parental alienation, and analyzing how domestic violence affects shared custody decisions and contributes to parental alienation practices. The research was conducted using a qualitative approach, with an exploratory aim and bibliographic methodology. The results indicate a rise in cases of procedural violence related to shared custody and domestic violence, revealing that this form of violence often goes unnoticed during judicial proceedings. In response, the Supreme Federal Court (STF) and the National Justice Council (CNJ) have taken a stance against inequality and violence in judicial decisions, underscoring the importance of implementing the “Protocol for Judging with a Gender Perspective” and the “Specialized Listening Protocol.” These protocols seek to mitigate discriminatory practices and ensure fair trials, promoting gender equality and protecting minors involved in custody disputes and cases of alleged parental alienation.

Keywords: parental alienation; shared guard; domestic violence; gende; child and adolescent.