scholarly journals A Restituição do Poder Familiar: da Possibilidade Jurídica ao Procedimento a Ser Adotado

2021 ◽  
Vol 21 (2) ◽  
pp. 71-80
Author(s):  
Carlos Canuto Machado
Keyword(s):  
Power Loss ◽  
Civil Procedure ◽  
Best Interest ◽  
Res Judicata ◽  
Theoretical Support ◽  
The Family ◽  
Judicial Authority ◽  
Children Education ◽  
Interesting Alternative

ResumoA família é a base da sociedade e do Estado. De fato, a convivência em família corresponde a um dos mecanismos preparatórios do indivíduo para vida em sociedade. Desse modo, se mostra importante a atuação dos pais na educação de seus filhos almejando esse múnus público, e para isso, a legislação oferta um complexo de deveres-direitos aos pais denominado de poder familiar. Se exercido de forma irregular o poder familiar dos genitores pode ser destituído pela autoridade judiciária. Em que pese alguns juristas e doutrinadores sustentarem que a destituição é irreversível, o princípio do melhor interesse do menor pode ser aplicado em alguns casos para permitir a restituição do poder familiar, desde que tenha ocorrido uma mudança fática na situação que ensejou a destituição e que o menor não tenha sido adotado. Importante frisar que a restituição do poder familiar não fere a coisa julgada, uma vez que se aplica o disposto no Artigo 505, I do CPC. Sugere-se, portanto, uma nova ação, que poderá restituir o poder familiar do (s) genitor (es), se comprovada a alteração dos fatos que ensejaram a destituição e que a medida se mostra mais proveitosa aos interesses do menor. O procedimento contencioso deverá ser empregado nos casos em que o menor está sob a guarda de outra pessoa. Já nos casos em que o menor se encontra na responsabilidade do Estado, o procedimento descrito no Artigo 109 da Lei 6.015/73 se mostra uma alternativa interessante. Palavras-chave: Poder Familiar. Destituição. Restituição. Procedimento. AbstractFamily is the groundwork of society and State. In fact, the family coexistence consists to one of the preparatory mechanisms of the person to live in society. Therefore, it’s important the parents actions for their children education, targeting at this public function, and for that, law offers a complex of duties-rights to parents which are called ‘family power’. If this ‘family power’ is irregularly exercised by parents, they may be removed by the judicial authority. Although some lawyers and theoretical support that the ‘family power’ lost is irreversible, the ‘principle of the best interest of the minor’ may be applied in some cases to allow the return of family power, since that a factual change has happened on that situation that led to the loss of ‘family power’ and that the child has not been adopted yet. It is important to highlight that the restitution of ‘family power’ does not reach the res judicata, since the text of ‘Article 505, I of the Brazilian Code of Civil Procedure’ is applied. Therefore, a new lawsuit is proposed, which may restore the ‘family power’ of the parents, if the modification of the facts that led to its dismissal is proven, and that the mandate is more beneficial to the minor’s interests. The litigation procedure should be applied in cases where the child is under another person’s custody. In cases in which the minor is under State’s responsibility, the procedure cited in ‘Article 109 of Law Act 6.015 of 1973” is an interesting alternative. Keyworks: ‘Family Power’; Loss of ‘family power’. Restitution of ‘Family Power’. Procedur.

Right to Parental Care

2017 ◽  
Author(s):  
Asha Bajpai
Keyword(s):  
Law Reform ◽  
Best Interest ◽  
Family Courts ◽  
Custody Of Children ◽  
The Family ◽  
Shared Parenting ◽  
The Right ◽  
A Minor ◽  
And Control ◽  
Physical Care

Custody refers to the physical care and control of a minor whereas guardianship is a wider term and includes rights and duties with respect to the care and control of minor’s person and property, and includes the right to make decisions relating to the minor. The present legal regime relating to guardianship and custody of children is discussed, including the Guardians and Wards Act, 1890, the Hindu Minority and Guardianship Act, 1956, the personal and matrimonial laws, and relevant provisions in the Family Courts Act and Protection of Women against Domestic Violence Act, 2005. The emerging concepts of shared parenting, joint custody, and the interparental child removal or abduction of child is included. There is review and analysis of some major reported judicial decisions. A comparative survey of international laws and trends has been done. Suggestions for law reform in the best interest of the child have been given.

scholarly journals Family Life for Children in State Care

2020 ◽  
Vol 28 (4) ◽  
pp. 715-747
Author(s):  
Clarie Breen ◽  
Jenny Krutzinna ◽  
Katre Luhamaa ◽  
Marit Skivenes
Keyword(s):  
Family Life ◽  
Foster Parents ◽  
Limited Extent ◽  
Best Interest ◽  
Family Unit ◽  
Theoretical Literature ◽  
Biological Parents ◽  
The Family ◽  
The Status ◽  
The Right

Abstract This paper examines what set of familial circumstances allow for the justifiable interference with the right to respect for family life under Article 8, echr. We analyse all the Courts’ judgments on adoptions from care to find out what the Court means by a “family unit” and the “child´s best interest”. Our analysis show that the status and respect of the child’s de facto family life is changing. This resonates with a view that children do not only have formal rights, but that they are recognised as individuals within the family unit that states and courts must address directly. Family is both biological parents and child relationships, as well between children and foster parents, and to a more limited extent between siblings themselves. The Court’s understanding of family is in line with the theoretical literature, wherein the concept of family reflects the bonds created by personal, caring relationships and activities.

scholarly journals The Stability Paradox: The Two-Parent Paradigm and the Perpetuation of Violence Against Women in Termination of Parental Rights and Custody Cases

2021 ◽  
pp. 311
Author(s):  
Judith Lewis
Keyword(s):  
Violence Against Women ◽  
Partner Violence ◽  
Nuclear Family ◽  
Parental Rights ◽  
Sexual Offense ◽  
Best Interest ◽  
Termination Of Parental Rights ◽  
The Family ◽  
Women And Children ◽  
The Stability

Despite changing family compositions, entrenched in family law is the antiquated idea that a two-parent household, or its approximation vis-à-vis a shared custody arrangement, promotes stability and integrity and, thus, is in the best interest of the child. Yet, the concept that the two-parent household (or shared involvement of both parents in the child’s life if the parents separate) promotes stability for the family and is best for the child is a dangerous fallacy. When rape or intimate partner violence (IPV) is present, or the re-occurrence of violence remains a threat, the family unit is far from stable. This Article explores the legal system’s glorification of the nuclear family, its resistance to shifting away from the two-parent paradigm, and how this resistance creates a stability paradox and perpetuates violence against women and children. The harmful impact that the nuclear family paradigm has on families is further explored by an examination of the statutory constructs and judicial interpretations of termination of parental rights (TPR) and custody statutes in cases where a child is conceived as a result of rape or exposed to ongoing IPV. Cases are utilized to examine how courts have interpreted parental rights statutes where a child is conceived as a result of rape. Additionally, a hypothetical case is discussed to explore arguments that may be advanced in TPR cases where children are exposed to ongoing IPV. The Article finds that although there are inherent problems in enacting statutes to terminate parental rights in cases involving rape or IPV, legislation is also a necessary tool for survivors. Model legislation is proposed for termination of parental rights in cases where a child is conceived as a result of a sexual offense or when a child is exposed to ongoing IPV.

scholarly journals Hegemony and mediations in melodrama of the Golden Age of Mexican cinema

2021 ◽  
Author(s):  
◽  
Dave Evans
Keyword(s):  
Twentieth Century ◽  
Golden Age ◽  
Lower Class ◽  
Best Interest ◽  
Contentious Issue ◽  
Mexican Cinema ◽  
The Family ◽  
Dominant Ideologies ◽  
The Masses ◽  
Revolutionary Period

<p>The influence of the mass media is a contentious issue, especially in regards to the Golden Age of Mexican Cinema in the mid-twentieth century. These melodramatic films have often been viewed by critics as instruments of hegemony. However, melodrama contains an inherent ambivalence, as it not only has a potential for imparting dominant messages but also offers a platform from which to defy and exceed the restraining boundaries imposed by dominant ideologies. An examination of a number of important Golden Age films, especially focussing on their contradictory tensions and their portrayals of modernity, illustrates this. The Nosotros los pobres series serves as an example of how melodramatic elements are incorporated into popular Mexican films and how melodrama could be used as an ideological tool to encourage the state’s goals. Similarly, the maternal melodrama Cuando los hijos se van uses the family to represent the processes of conflict and negotiation that Mexicans experienced as a result of modernization. Consistent with the reactionary nature of melodrama and its simultaneous suggestive potential, the film combines a Catholic worldview with an underlying allegory of moving forward. The issue of progress is also at the centre of a number of films starring iconic actor Pedro Infante, which offer an avenue for exploring what modernisation might mean for male identity in Mexico. His films show a masculinity in transition and how lower-class men could cope with this change. Likewise, the depiction of women in Golden Age film overall supports the stabilising goals of the 1940s Revolutionary government, while also providing some transgressive figures. Therefore, these films helped the Mexican audience process the sudden modernization of the post-Revolutionary period, which was in the state’s best interest; however, the masses were also able to reconfigure the messages of these films and find their own sense of meaning in them.</p>

scholarly journals Diálogo das fontes e soluções de antinomias na efetivação da partilha de quotas por ex-cônjuge ou ex-companheiro de sócio

2020 ◽  
pp. 96-123
Author(s):  
Lucas Salles Moreira Rocha ◽  
Tereza Cristina Monteiro Mafra
Keyword(s):  
Property Rights ◽  
Family Relationship ◽  
Limited Liability ◽  
Civil Procedure ◽  
Civil Code ◽  
Limited Liability Company ◽  
The Family ◽  
Teleological Interpretation

RESUMOO presente artigo objetiva examinar o direito patrimonial do ex-cônjuge ou ex-companheiro de sócio sobre quotas de sociedade limitada, nos casos de rompimento da relação familiar em que haja litígio quanto à divisão dos bens. A matéria atualmente gera controvérsias, pois o art. 600, parágrafo único, do Código de Processo Civil, e o art. 1.027 do Código Civil, que regulam os direitos do ex-cônjuge ou ex-companheiro de sócio nos casos de término da relação conjugal, aparentam conflitar entre si. Diante das controvérsias que permeiam o tema, buscar-se-á, pelo método exploratório, realizar interpretação sistemática e teleológica, para sugerir a aplicação da teoria do diálogo das fontes na compatibilização das normas aparentemente conflitantes.PALAVRAS-CHAVEDivórcio. Partilha de quotas. Diálogo das fontes. ABSTRACTThe purpose of this article is to examine the property rights of a member’s former spouse or partner towards the ownership interests of a limited liability company, in the event of a break in the family relationship, in which there is a dispute over de division of goods owned by the couple. The matter is currently controversial, since Articles 600, sole paragraph, of the Code of Civil Procedure, and Article 1,027 of the Civil Code, which regulate the rights of the former spouse or partner of partners in cases of termination of the conjugal relationship, appear to conflict with each other. Given the controversies that permeate this field, this paper will seek to perform systematic and teleological interpretation, though the exploratory method, in order to suggest the application of the theory of the dialogue of the sources in the compatibilization of the apparently conflicting rules.KEYWORDSDivorce. Division of ownership Interests. Dialogue of the sources.

Child Custody in Jewish Law: From Authority of the Father to the Best Interest of the Child

2008 ◽  
Vol 24 (1) ◽  
pp. 89-122
Author(s):  
Yehiel S. Kaplan
Keyword(s):  
Child Custody ◽  
Jewish Law ◽  
Best Interest ◽  
Stage Of Development ◽  
Parents And Children ◽  
Custody Of Children ◽  
The Family ◽  
Dominant Tendency ◽  
The Relationship ◽  
Explicit Rule

The understanding of Jewish law of the legal rationale of the relationship between parent and child developed gradually. In the first stage, in ancient Jewish law, the dominant tendency was to affirm the authority of the Jewish father over the members of his family. During this period, the idea that parents have a natural responsibility to love their children, care for them and provide for their welfare was less transparent. The main purpose of the rules concerning the relationship between parents and children at this stage was the assertion of the rights and needs of the father of the family.1 Consequently, some of the regulations of ancient Jewish law regarding the relationship between parents and children were not necessarily focused on the best interest of the child and the ideological basis for the legal policy in the sphere of custody in the ancient period was somewhat vague.By contrast, during the second, medieval stage of development of Jewish law on the relationship between parents and children, the ancient supreme principle, of the father's authority over members of his family in all spheres including the sphere of custody of children, was largely replaced by an explicit rule in Jewish law: the best interest of the child is a paramount consideration. Indeed, we could say that the explicit implementation of the principle of best interest of the child in Jewish custody cases is a medieval invention, introduced by Jewish scholars at this period in their child custody verdicts. By contrast to the ancient period, the rules of custody, which had become fully defined at this stage, utilizing this principle, usually favored the mother.

scholarly journals The Principle of Protecting the Best Interests of the Child in Shia Jurisprudence and Iran’s Legal System with Emphasis on Custody (New Understanding of a Traditional Legal Concept)

2019 ◽  
Vol 6 (1-2) ◽  
pp. 67-82
Author(s):  
Seyed Masoud Noori ◽  
Maryamossadat Torabi
Keyword(s):  
Legal System ◽  
Children's Rights ◽  
Children’S Rights ◽  
Best Interests ◽  
International Treaties ◽  
Best Interest ◽  
Legal Concept ◽  
Rights Of The Child ◽  
The Family ◽  
Made In

In this article, children’s rights will be studied in the Iranian legal system with remarks on its references in the Shia Jurisprudence. One of the main issues regarding children, is their guardianship, custody or tutorship. The Iranian legal system, same as the Shia Jurisprudence, has always kept the best Interest of the child as an essential ground for law making. Referring to court decisions; it is evident that control of the guardianship on the child is limited by the best interests of the child, because this interests is what we are sure to understand from the reason of custody of the child and that this system is designed only to secure child’s best interests since he/she might be incapable to secure his/her interests alone. The Iranian legal system, especially in the family law section is based on the Islamic rules. The main documents in the Shia Jurisprudence in Islam are Quran, Hadith, Consensus and reasoning which will be defined herein. In addition, a more recent review will be made in this study regarding the ratified laws regarding children’s rights and international treaties and conventions while focusing on the Convention on the Rights of the Child even though, Iran joined this convention by having several reservations.

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