A problemática da lei de alienação parental e a litigância abusiva no direito das famílias

Abstract

This undergraduate thesis deals with the problematic of Law No. 12.318/2010 which exams parental alienation from the perspective of abusive litigation in family law. The choice of the theme is justified due to the use of this Law by aggressors and abusers as a way of inflicting suffering on mothers, employing the measures of coercion contained in this instrument as a means to practice abusive litigation, thus hindering the full protection of child and adolescent and their best interest. We sought to highlight the multidisciplinarity of the subject, exposing the criticisms and questions of the scientific community regarding the lack of scientificity of the Parental Alienation Syndrome, a concept glimpsed by the American Physician Richard Gardner, highlighting its direct influence on Brazilian legislation, especially with regard to touches the punitive bias of the “alienator” law, to the detriment of the protection of children and adolescents. It also deals with the understanding that the Law has a sexist genesis, enabling gender discrimination before the courts by assigning the qualification of “alienator” to those who, in fact, intend to protect their children, as well as facilitates abusers and offenders to practice acts of malicious prosecution to the detriment of their former partners and have jurisdictional provisions in their favor, being punished by reversing or changing custody and consequently leaving minors under the tutelage of abusers or aggressors. Given the scarce scientific material on the subject, in other words, scientific research able to clarify the still nebulous issues that permeate the matter, the final consideration is the need for caution to apply such concepts in the midst of judicial proceedings. Although the right to family life is essential for the development of children and adolescents, it cannot be unlimited at any cost. In this sense, the impression is that the repeal of the Parental Alienation Law would be a pertinent measure to be taken at the present time, since it would reduce gender inequality without jeopardizing the full protection to the minor, since it is guaranteed by the other consecrated legal devices and values. The legal system is being sufficient to combat the possible excessive conduct, both in the civil and criminal scope, by the parents. Nevertheless, it was noted as a common denominator among scholars the need to train professionals in law and psychology who work directly with court proceedings involving families, so that the law does not incur unreason.