Um estudo sociojurídico do dever/direito paterno inserido no tratamento legal ofertado à guarda conjunta e algumas discussões doutrinárias acerca da recusa judicial ao compartilhamento

Abstract

The research begins with the observation that, in Brazil, the direct participation of fathers in child custody after the dissolution of a conjugal union is frequently absent, despite legal provisions that prioritize joint custody. According to legal doctrine, this situation is largely sustained by judicial decisions that either reject the application of joint custody or fail to provide adequate conditions for its effective implementation. This study aims to examine the paternal duty/right through the lens of the contemporary legal framework applicable to joint custody, in order to analyze, based on doctrinal references, the reasons and implications of judicial decisions that dismiss joint custody arrangements, including their impact on children. The research initially adopts a descriptive and qualitative approach, followed by a deductive method. Key sources include specialized national legal literature, data from the Brazilian Institute of Geography and Statistics (IBGE), and the guidelines of the CNJ’s Protocol for Judging with a Gender Perspective. The analysis reveals that, in some circumstances, the rejection of joint custody is justified and reflects a social reality of certain fathers’ neglect of their custody responsibilities. However, in other situations, it stems from the application of the law based on factors such as (i) gender stereotypes regarding male incapacity for caregiving, (ii) mistaken interpretations of parental conflict, and (iii) the automatic granting of sole maternal custody due to protective measures, without allowing due adversarial proceedings. The study also found that courts frequently impose the child’s primary residence with the mother, even under joint custody and even when both parents live in the same city—a practice lacking legal support that may hinder the proper functioning of the joint custody model and, consequently, paternal involvement. The study suggests more systematic use of instruments such as the parenting plan and parental coordination, as well as greater male awareness of the caregiving duty inherent to custody, which could become a key driver for improving the legal treatment of fatherhood in custody proceedings. It further recommends that judges apply the law more technically and free from stigmas, to ensure greater implementation of the joint custody rule—thereby promoting not only gender equity and the reduction of maternal overload but, above all, the best interests of the child and adolescent.