Multiparentalidade: uma análise dos limites e efeitos jurídicos práticos sob o enfoque do princípio da afetividade

Abstract

Multiple parenting was the topic of this paper. An assessment of the practical legal limits and effects of it, when seen through the prism of affection and fondness, derives from the core issue that begs the question: what are the legal limits and effects that ensue from multiple parenting when considering the possibility of the coexistence of birth parents and other parents? The overall goal of the study was to analyze multiple parenting under the principle of affection, checking the limits and juridical effects of acknowledging it. The following specific objectives were sought: the analysis of the legal definition of parent, taking into account biological, legal, and affection criteria; the theory of multiple parenting and its approach; the possibility of birth parents and other categories of parents coexisting; the understanding of the concept of multiple parents by studying its guiding principles and legal implications for family rights, such as parental authority and shared custody, as well as patrimonial rights, such as those concerning subsistence and inheritance. It is, therefore, a socially relevant study in view of the occurrence of factual situations across Brazil. It is also currently relevant because the subject matter was brought to the limelight by the Supreme Court ruling in the case Extraordinary Appeal no. 898.060/SC, which admittedly had broad repercussion (Theme 622). Indirect sources were used and the bibliographical review included the reading of doctrine, scientific articles, journals, periodicals, and Brazilian legislation. The deductive method was adopted in order to assess the Affection Principle (major premise) and its incidence in actual multiple parent relationships (minor premise), which led to a conclusion regarding the possibility or not of the coexistence of birth parents and other categories of parents, thus substantiating multiple parenting. The inductive method was concurrently used to set the limits for the recognition of multiple parenting. The dialectical method was employed to confront thesis and antithesis, theoretical thinking and antithetical and/or divergent thoughts. As to the legal interpretive method, the study was guided by constitutional hermeneutics. Hence, in addition to the introduction and the conclusion, this paper has three other sections. The first section delved into the process of parenting through history and into multiple parenting. Multi-parentage is analyzed in section two from a civil and constitutional perspective and based on the central ruling in Extraordinary Appeal no. 898.060/SC by the Supreme Court an on other rulings from 2012 to 2018, which all recognized multiple parenting. The third section showed what the limits are for the acknowledgment of multiple parenting and the effects dealing exclusively with family rights and patrimonial rights covered in the study. The conclusion drawn at the end was that affection must be inherent to multiple-parent relationships and that the Supreme Court ruling cannot be applied indistinctively, lest multiple parenting become a tool towards acquiring patrimonial rights.