A lei da alienação parental: aspectos controvertidos da aparente discricionariedade judicial no art. 5º à luz do debate Hart X Dworkin

Abstract

The recognition of children and adolescents as subjects deserving special rights due to their condition of being in formation is a recent achievement in Brazil. Recognizing the disregard of their unique situation as persons in formation, it remains clear the violation of their rights, in particular, the fundamental right to healthy living with their family and parents even in the face of the occurrence of family dislocations, when, as a rule, a of parents proceeds to exercise predominantly parental powers over the offspring. This scenario of rupture of conjugality is not infrequently followed by a scenario of rupture of parenthood itself through acts of parental alienation. In order to understand this process, characteristic, doctrinal and legal aspects of such acts are analyzed. At first, the investigation turns to the conceptual evolution of parental alienation since the initial studies of Richard Gardner and also following the paths taken by the Brazilian legislation regarding the treatment given to children and adolescents from the doctrine of the risk situation until the doctrine of integral protection present in the constitutional body. Then, the shared custody will be defended as one of the guarantees of the maximum and healthy coexistence between parents and children, which came, in a historical legislative sequence, complemented by Law 12.318 / 2010, Parental Alienation Law. At the end, the perplexities arising from the apparent judicial discretion present in the interpretation of artigo 5 of Law No. 12.318 / 2010. These perplexities lead to question which interpretative matrices would point to a better answer for the application of the normative text by the magistrate, which implies the adoption of a theory for the interpretation of the law text. In the second moment, the research turns to the analysis of two theories that could be presented as an interpretative matrix for the perplexities found: Hart's renewed positivism and Ronald Dworkin's Law as Integrity. In this second moment, the analysis turns to ask how each of these theories is positioned to say what is the Law and from this position, determine how the vagueness or indetermination of the normative text should be resolved and, therefore, how It is possible for the judge from the interpretation, to integrate the legal text which, after all, is the purpose of the present investigation. With such tools, at the final moment of the work, it will be possible to face the indetermination of artigo 5 of the Parental Alienation Law and propose an interpretative matrix that best aligns with the Theory of Integral Protection of children and adolescents.