Taking Parental Alienation Seriously – Brazil’s New Law

In the wake of the Sean Goldman episode, Brazil’s President has signed legislation defining parental alienation and arming judges with powerful remedies to assist alienated children.

The law defines an act of parental alienation as “the interference in a child’s or adolescent’s psychological training promoted or induced by either parent, by grandparents, or by those who hold the child or adolescent under their authority, guardianship, or surveillance to reject one of the parents, or that hampers building or maintaining bonds with them.” A better translation was posted on March 28, 2011.

Law No. 12,318 , ON 26 AUGUST 2010

Provides for parental alienation and amending Art. 236 of Law No. 8069 of July 13, 1990 .

THE PRESIDENT OF THE REPUBLIC

makes it known that the National Congress has passed, and that he enacts the following Law:

Art. 1. This law rules on parental alienation.

Art. 2. An act of parental alienation is deemed the interference in a child’s or adolescent’s psychological education promoted or induced by either parent, by grandparents, or by those who hold the child or adolescent under their authority, guardianship, or surveillance to reject one of the parents, or that hampers building or maintaining bonds with them.

Sole paragraph. Illustrative forms of parental alienation, in addition to those so determined by a judge or ascertained by experts, either directly committed or with the aid of third parties are:

I – to carry out campaigns for disqualifying a parent’s behaviour upon exercising his/her parenthood;

II – to obstruct the exercise of parental authority;

III – to obstruct the contact between a child or adolescent with one of their parents;

IV – to obstruct the legal right to exercise family life;

V – to deliberately withhold from a parent relevant personal information on the child or adolescent, including school-related, medical, and address changes;

VI – to file false charges against a parent, their family members, or against grandparents, to obstruct or prevent their presence in the child or adolescent’s life;

VII – to change residence to a distant place, without justification, in order to make it difficult for the child or adolescent to live with the other parent, their family member, or grandparents.

Art. 3. The practice of parental alienation infringes a fundamental right the child or adolescent has in having a healthy family life, impairs affection in their relationship with the parent and other family members, and constitutes moral abuse on the child or adolescent, in breach of the duties inherent to parental authority, or to guardianship or custody.

Art. 4. Once an act of parental alienation has been so stipulated, either on a motion or by default, at any stage of the proceedings, either on a lawsuit or after an incident, proceedings shall have priority, and the judge shall determine expeditiously, after the Public Prosecutor has been heard, the provisionary action required to preserve the child or adolescent’s psychological integrity, including to assure their life with the parent, or to facilitate the actual reapproximation between both, if applicable.

Sole paragraph. Both the child or adolescent shall have ensured minimum assisted visits, except in cases where there is imminent risk to the child or adolescent’s physic or psychological integrity, so attested by a professional eventually appointed by the judge to assist such visits.

Art. 5. Whenever there is evidence of parental alienation practice, brought by a lawsuit or after an incident, the judge, if necessary, shall determine a psychological or bio psychosocial expert assessment.

§ 1st The expert report shall be based on a wide psychological or bio psychosocial assessment, as applicable, also including interviews with the parties, review of court records, history of the couple’s relationship and separation, chronology of incidents, assessment of the involved parties’ personalities, and an examination of the child or adolescent’s response to a possible charge against one of their parents.

§ 2nd The expert assessment shall be carried out by a qualified professional or multifunctional team, requiring, in any case, proven qualification from either professional or academic records in diagnosing parental alienation acts.

§ 3rd The expert or multifunctional team assigned to determine the occurrence of parental alienation will have up to 90 (ninety) days to submit their expert report, such time being extended solely on court order based on properly grounded justification.

Art. 6. After having ascertained typical acts of parental alienation or any behaviour obstructing the life of a child or adolescent with either parent, either brought by a lawsuit or after an incident, the judge may, either cumulatively or not, with no prejudice to any civil or criminal liability, widely using the procedural instruments capable of inhibiting or mitigating their effects, according the severity of the case:

I – declare the occurrence of parental alienation and notify the alienator;

II – extend the family life schedule in favour of the alienated parent;

III – apply a fine to the alienator;

IV- determine psychological or bio psychosocial counselling;

V – determine change of custody to joint custody, or its reversal;

VII- determine, by restraining order, the place of residence of the child or adolescent;

VII – declare the suspension of parental authority.

Sole paragraph. Once an abusive address change, obstruction or prevention of family life, have been ascertained, the judge may also reverse the duty of taking the child or adolescent to or from the parent’s home upon their changing the place of family life.

Art. 7. Guardianship attribution or modification shall be made in favour of the parent who makes the life of the child or adolescent feasible with the other parent, in cases where shared custody is not viable.

Art. 8. Changes in the child or adolescent’s domicile is irrelevant for determining competence over lawsuits grounded on the right to family life, except as arising from mutual agreement between parents, or a court ruling.

Art. 9. (ANNULLED)

Art. 10. (ANNULLED)

Art. 11. This Law becomes effective as of the day of its publication.

Brasília, August 26th, 2010; 189th of Independence, and 122th of Republic.

LUIZ INÁCIO LULA DA SILVA
Luiz Paulo Teles Ferreira Barreto
Paulo de Tarso Vannuchi

Share
This entry was posted in parental alienation/parental alienation syndrome and tagged , , , , , , . Bookmark the permalink.

24 Responses to Taking Parental Alienation Seriously – Brazil’s New Law

  1. Congratualtions on taking the plunge! I have somehow managed not to succumb, but probably to my detriment. I admire your courage. I will try to be a devotee, commenting frequently, but then again, …. it does involve technology and time.

    Bravo!

  2. Dave Robinson says:

    Three cheers for Brazil’s president and the people behind him that worked to bring this legislation into law.
    Parental alienation is a tragedy of immense proportions that not only profoundly affects the children negatively but their extended alienated families as well.
    The family unit is the foundation that our civilization was built upon. Fixing family issues goes a long way towards fixing the woes of society.
    For far too long fathers rights have been marginalized in family courts and Dad’s are biased against right from the start. The perception has to change from deadbeat Dad’s who only make up a minority and focus more on the beaten Dad’s who are the majority.

  3. Anthony says:

    I find the translation quite hard to read – I wonder if you could find or do a better one so that we can point people to this page for reference.
    Many thanks

  4. cxf says:

    It’s nice to see that you’ve taken on a blog Dr. Warshak, and it’s nicer to see that a developing nation such as Brazil is adopting laws with such pas specific language and arming judges with the power to do something about it. Why do you think the U.S, especially states such as Texas, have an aversion to enacting laws like this?

    • Steve Buchanan says:

      Although I have my own suspicions about where the opposition to PAS comes from domestically, I would also like to hear Dr. Warshak’s opinion.

      I wonder how many countries officially recognize PAS? How many states?

      • If, by opposition to PAS, you mean opposition to the concepts of parental alienation and parental alienation syndrome and the idea that children can be influenced to irrationally reject a parent, I think this comes from several quarters. Primarily I think those who fight against recognition of this problem are concerned that the labels will be misused.

        It is getting more and more difficult, approaching absurdity, to maintain that children’s attitudes are impervious to outside influence. But people worry that a child might be labeled as irrationally alienated from a parent when 1) the child is not really alienated, just disappointed in a parent, or 2) the child rejects a parent for good reasons, or 3) the child does unreasonably reject a parent, but the other parent is not primarily responsible for the problem. The concern is that judges might mistakenly believe that all children who are reluctant, or refuse, to spend time with a parent are making a poor choice and acting under the influence of the favored parent. What I am hearing from readers of Divorce Poison and readers of this blog is the opposite concern: that courts are not acting effectively to prevent, reduce, or overcome the damage done to children who are manipulated into siding with one parent against the other.

        Re: countries officially recognizing PAS. I do not know the answer to that question. I do know that several towns, cities, and states have proclaimed a Parental Alienation Awareness Day.

        By the way, the DVD, Welcome Back, Pluto: Understanding, Preventing, and Overcoming Parental Alienation, has sold in ten countries to date: U. S, Canada, U. K., France, Switzerland, Australia, Ireland, Japan, Italy, and Hong Kong (although the status of Hong Kong as an independent country is open to dispute).

  5. [name withheld by blog admin] says:

    One would think the U. S. would pass such laws. I’m beginning to think lawyers are eating it up. It’s more money in their pockets. I know my husband’s attorney knows his client is lying. The lawyers should be punished as well, especially if found that they encouraged the idea. There also should be laws passed for divorcing couples stating neither party can spend more in attorneys fees. This would help the one left with nothing. Parent alienation should be a federal offense with mandatory jail time and public apology. Never in my wildest dreams did I think I would have gone through such a horrific situation. I won my innocence only to be told that mental abuse against me or my children is to hard to prove. Boy was that a kick in the gut. I passed a lie detector test, psychosexual evaluation and had everyone write to [the child welfare agency] about my character. I called and emailed them everyday. After 5 months of not seeing my children they decided I was telling the truth. Final hearing for divorce and my lawyer days you don’t have enough money to try this case. Take the deal. So I signed divorce papers with shared custody and he put in papers that he would never bring up the sexual molesting charges. My divorce papers still haven’t been signed by the judge six months later. I wish someone would help me and my children.

    • The frustration with the legal system that you express is shared by many. Many lawyers, themselves, are frustrated. It is natural to generalize from your own experience and feel disenchanted with all lawyers. But lawyers are like any other group of people and should be judged individually. Most see no conflict between earning a living and helping their clients. They work in an adversary system that is not always a good fit for families going through a divorce, and their professional groups recognize the problems and are working on solutions. Some of the proposed legal reforms I will be discussing in future blog posts.

      • [name withheld by blog admin] says:

        I agree. Except for the first lawyer my wife had, the attorneys have done their job. It has been primarily the behavioral health ‘experts’ that have done the most damage. The courts would have acted long ago had the ‘experts’ made the proper recommendations to combat PAS. The ‘experts’ have kept trying to slowly increase my time with my child in a supervised setting so as not to be too upsetting for my child. My ex simply made sure that my child acted more and more upset every time the ‘expert’ wanted to increase my time thus sabotaging the effort.

      • Sherry Palmer says:

        I would like to be a part of these proposed legal reforms. Can you please refer me to the people working on them please?

        • I was invited to participate in the Families Matter Symposium, co-sponsored by the American Bar Association Family Law Section and the University of Baltimore School of Law Center for Families, Children and the Courts. A select group of leaders in the field were invited to develop recommendations for family law process reform to make the system less destructive to families. There were about 60 people invited, mainly judges and attorneys and about a half dozen mental health professionals. The group has met once so far, and will be continuing to discuss and then draft proposals for family law reform. So, right now, it is not possible for you to be part of the reforms. It is likely, though, that eventually a draft of the proposed reforms will be available and comments invited from the public. That would be the time for you to get involved.

          • Steve Buchanan says:

            Will the group’s recommendations carry any weight with the committee deciding on admissal of PAS into the next DSM? If not, what impact will the group’s findings have?

          • DSM (Diagnostic and Statistical Manual) is a product of the American Psychiatric Association. The American Bar Association group is focusing on issues related to family law courts. One potential family law reform that has implications for families with children who are alienated or at risk for becoming alienated is a “fast-track” option for such cases so that problems are nipped in the bud rather than become entrenched while the family waits for their day in court.

          • EdWatters says:

            “Fast track”, translated into family court’s conception of time would still be an agonizingly long process, I’m afraid. The attorneys and judges obviously go through some process of indoctrination that allows otherwise rational people to think nothing of ‘continuing’ the next hearing three, four, even six months out. My judge allowed opposing counsel to then continue further for personal issues he was having.

            Going to family court is like visiting Venus.

    • [name withheld by blog admin] says:

      You and I share a common experience except that mine has gone on for 10 long years with no positive results. The judge huffs and puffs but my ex just ignores the judge’s warnings. It seems to me that judges refuse to do what is necessary to ensure the alienators’ compliance i.e. jail. No monetary penalty or scolding works.

  6. Welcome to the world of blogging, Dr. Warshak. Your efforts to raise awareness of parental alienation are much appreciated by the many parents, children and extended family members who know the pain and heartbreak of alienation.

    I look forward to following you!

    Best,

    mike jeffries

  7. Yey Brazil! Follow suit U.S.! I concur that anyone responsible (police, judges, attorneys) be punished for facilitating alienation. Anyone heard of violations under the color of law? These are our precious children! The legal system needs to clean up its act. Hopes and prayers and hugs peace to all devastated by this horrible phenomenon.

    • I agree that there is plenty of room for improvement in how various aspects of the legal system respond to families with alienated children. My preference is to educate people about the problem and about what they can do to help. I see a parallel between the problem of parental alienation and domestic violence. Law enforcement personnel with a poor understanding of domestic violence will not do as good a job responding to the problem as those with more knowledge.

      • Sherry Palmer says:

        Can you expound on this topic a little more Dr. Warshak please? Do you mean you see abusive parents not being recognized and then the child or children shutting the abusive parent out. Or do you mean that the abusive parent is getting away with abusing the other parent and then taking off with the children and turning those children on the parent that had suffered the abuse? Or do you mean that the children were the abused and the authorities miss it and push the children to be with both, the abusive parent and the other and then the children are alienated by the victimized parent?

        • A more complete reply will have to wait for another time. But one thing I had in mind is when a child irrationally rejects a parent, say a mother, and the father encourages the child to run away from the mother. When the police are called in, if they do not understand the problem they may fail to enforce the existing court orders and return the child to the mother. Instead, they may allow the child to remain with the father. By the time the mother gets her day in court, months may have gone by during which she had no contact with her child and during which the child’s alienation became more entrenched and more resistant to reversal. On the other hand, if the child was returned immediately to the mother, and the court made it clear to the entire family that the court-ordered schedule of parenting time governs the situation, this could get the child out of the middle and help avoid further problems. Naturally I am referring only to situations in which it is clear that the child is in no danger remaining with the rejected parent.

  8. [name withheld by blog admin] says:

    I can feel much of the sadness and anger that I went through in my ordeal in the above posts. My ordeal being false accusations of abuse to obtain custody (FAAOC) by my ex. She was coached by a woman who had successfully pulled off the same ploy several months earlier (my daughter’s court appointed attorney remembered her from the case – the woman had the audacity to accompany my ex to court).

    At the ex parte, the judge appeared annoyed at my protests (which included the fact that she had tried this ploy twice before and the allegations were never found to have any merit whatsoever). The judge said, “don’t worry, you’ll have a chance to present your side in three weeks”. Well, three weeks of 24-7 contact is really more than enough time for an unscrupulous woman to fully alienate any 10 year old child, so long as she has no concern for the effects of the alienation process on the mental health of the child.

    The ‘three weeks’ turned into seven thanks to delays by my daughter’s attorney and my ex’s attorney. By the time I had my first visit with my daughter, she was so frightened of me from God-only-knows what lies her mother had told her, she couldn’t come near without shaking uncontrollably. For the next year and 3/4 I battled a timid judge and a savvy opposing counsel to get my daughter back but, the truth is, it was over the second the judge said, ‘the father shall have no contact with the minor’ at the ex parte.

    This judge wasn’t possessed of the sharpest of intellects but surely, with 5 years on the bench, she knew all the possible scenarios. And this is the heart of the dilemma in FAAOC: the judge would rather risk a child losing a parent than exposing a child to even the smallest of risks of continued sexual abuse.

    There are simple solutions to this dilemma but with the anti-tax hysteria enveloping the country, they won’t be economically feasible until the public becomes aware of the tragedy being played out in family courts day after day. Bravo to Dr Warshak and all his fine work in that effort and also for setting up a forum where people can tell their stories, share their sadness and anger, and maybe prevent a tragedy.

    One last word about anger. It’s a very understandable reaction to the idiocies of family court and child ‘protective’ services but it is nothing but counterproductive – inside and outside the courtroom.

  9. Italy has a good custody law since 2006.
    “In the case of separation of parents the child has the right to remain constant, an equivalent and direct relationship with each of them receiving care, education and experience gained from each parent, and maintain meaningful relationships with their fathers and relatives from both the parents’ right Italian law nr.54 in 2006.
    I am writing from Poland and we want similar law to be passed in Poland this would solve most of the PAS problems.
    our web site is opiekarownowazna.pl
    72 thousand pairs in 2009 separated in Poland, for 120 thousand children, this means the disintegration of the family for 96% of the sentence is “fixed place of residence of the child whenever the mother’s place of residence is” every year about 50 000 of children have difficult or impossible childhood with dad.
    It is reasonable to introduce the law where the court decides to declare a separation of the parents and they cant agree themselves on the child care, court will order the child will spend half the time during the year with my dad and half from the mother.Using model plans for specific age groups.

  10. [...] Taking Parental Alienation Seriously – Brazil’s New Law | Dr. Richard Warshak's Blog: Plutoverse [...]