A aplicação da guarda unilateral em casos de violência doméstica e familiar conforme a Lei n° 14.713/2023: uma análise à luz do melhor interesse da criança e do adolescente

Abstract

The present work aims to analyze the application of the custody institute in cases involving domestic and family violence. In these terms, the factual and legal scenario that led to the enactment of Law 14.713, on October 30, 2023, was analyzed. The discussion initially brought a historical review of Brazilian Laws protecting children and adolescents, from the drafting of the first legislation protecting the rights of his portion of the population, at the time of the kingdom's ordinances, until the enactment of the Federal Constitution – which in its article 227 guarantees the full protection of the rights of children, with absolute priority – and the Child and Adolescent Statute. The types of custody that exist in Brazilian Law were also debated, because although shared custody is considered the rule in the country's legal system, Law 14.713/2023 brought significant changes to the Civil Code and the Civil Procedure Code, to establish that unilateral custody should be applied in cases of risk of domestic and family violence. In this context, the conflicts between the application of emergency protective measures and shared custody were analyzed, as well as the impacts that domestic and family violence has on children and adolescents, in order to clarify the importance of Law 14.713/2023 to safeguard the best interests of these people. Finally, emphasis was placed on two other laws that deal with the protection of victims of domestic and family violence, Laws 11.340/2006 and 14.344/2022. The research used normative instruments and doctrinal debates, so that the study carried out is of the exploratory, bibliographical and documentary type, using the deductive approach method. Therefore, the present study concluded that in cases where there is a high level of animosity between the parents, leading to acts of domestic and family violence, the application of unilateral custody is imperative, making the enactment of Law 14.713/2023 correct.