The Brazilian Supreme court awarded US$ 110,000 of moral damages to a daughter who felt emotionally abandoned and felt treated as second class daughter by her father. The court dismissed the father’s defense that this emotional abandonment was caused by the mother’s aggressive behavior. Also the fact that paternity of the now adult daughter was only officially established recently.
Such legal liability is now in the process of being incorporated into the ECA statute of adolescent and children’s rights.
The intent of giving emotional support is noble. Human-Stupidity deplores the overcriminalization and total regulamentation of all aspects of human behavior under the threat of heavy civil liabilities.
Due to the importance of such decisions to Libertarians, the men’s rights (and feminist) movement, we translated two newspaper articles in their entirety.
Translation: Superior Tribunal in Brazil orders father to pay compensation for emotional abandonment
(STJ condena pai a indenizar filha por abandono afetivo)
SAO PAULO – The Third Chamber of the Superior Court of Justice (STJ) ordered a father to pay R $ 200 thousand [US$ 110 000] to his daughter for "emotional distance". The decision is unprecedented. In 2005, the Fourth Chamber of the Supreme Court had rejected moral damages for emotional distance.
The case judged originates from São Paulo. The author of the case obtained judicial recognition of paternity and filed suit against the father because he had suffered material and emotional neglect during childhood and adolescence. The trial judge dismissed the petition and attributed the father’s distance to "aggressive behavior" of her mother towards the father. The woman appealed to the appeals court and said the father was "wealthy and prosperous." The Court of São Paulo (TJSP) reversed the judgment and set the compensation for R$ 415,000.
On appeal to the Supreme Court, the father argued that there was no abandonment, and even if he had done so, there would be illegal to be financially indemnified and the only possible punishment for failing with such obligations fathers would be the loss of family power.
Minister Nancy Andrighi , the of the court’s third chamber, however, understood that it is possible to demand compensation for moral damage caused by emotional abandonment by parents. "Love is optional, care is duty," she said in the sentence. For her, there is no reason to treat the damage to family relationships differently from other civil damages.
"Many, based on axioms that focus on the existence of special circumstances in family relationships – feelings and emotions – many deny the possibility to indemnify or compensate for damage arising from failure of parental obligations parents have to fulfill," said the minister. "However, in family law there are no legal restrictions on the application of the rules relating to liability and the consequent duty to indemnify / compensate."
The minister pointed out that moral damages in family relationships may involve subjective questions, such as affection, sorrow or love, making it difficult to identify the elements that traditionally compose the material damage indemnifiable: damage, the authors fault and causation. However, it is understood that parenthood carries objective omotional bonds with legal consequences and constitutional minimum duties to be fulfilled.
"Here we do not talk or discuss love but rather the biological and legal enforcement of caring, which is a legal duty, a consequence of the freedom of people to generate or adopt children," the minister argued.
In the analyzed case, the minister stressed that her daughter has overcome the emotional difficulties causedtreatment as "second class daughter," who was not offered the same conditions for further development that was given to the later born children. Not while presumption of paternity was "evident", nor after the judicial recognition of paternity.
The daughter finally gained employment, founded a family with children and was able to "grow reasonably right." However, the feelings of hurt and sorrow she endured, caused by parental neglect can be characterizing as damage. The amount of compensation set by the lower court TJ-SP, however, was considered high by the supreme STJ, which reduced it to R$ 200,000 [US$ 110 000], a figure that should be inflation adjusted since November 26, 2008, trial date by the court in São Paulo.1
Affectional neglect and abandonment of children may be considered an illegal act
(Abandono afetivo de filhos poderá ser considerado ato ilegal )
BRASILIA – The Committee on Constitution, Justice and Citizenship (CCJ) approved on Wednesday, a change in the Child and Adolescent Statutes (ECA) to enforce financial reparation of damage by a child’s father or mother who fails to provide emotional support to children, be it by the living together, or by periodic visits.
The text states that the non-custodial parent of the child or adolescent will be required, by the Civil Code, not only to visit and accompany him or her, but also to watch their financial maintenance and education.
In addition to the duties of financial support, custody and education of minor children, the proposal amends the ECA statutes to also demand of parents the duty of having presence in their children’s life and giving material and moral assistance. It is important to stress that this aspect will be considered in the judgments of having given up guardianship and having suspended or given up family rights.
Elementary school principals will have the responsibility to inform the child protection agency in cases of neglect, emotional abuse or emotional abandonment. The current law requires educators to report only cases of physical abuse of students, repeated unjustified absences, high levels of repetition of school years and school dropout.
- Abandono moral – Fundamentos da Responsabilidade Civil
- Experts question the punishment of parents for moral abandonment – as in the law to be votede by the Brazilian senate. (Especialistas questionam punição de pais por abandono moral prevista em projeto que tramita no Senado)
- Pai deve indenizar filho por abandono afetivo