Abandono parental: o conteúdo dos deveres parentais e o papel da responsabilidade civil preventiva como garantia da eficácia diagonal dos direitos fundamentais na relação paterno-filial

Abstract

This doctoral thesis investigates the complex phenomenon of parental abandonment in Brazil, seeking to reframe it through the lens of preventive civil liability and the diagonal effectiveness of fundamental rights, with the primary objective of strengthening the comprehensive protection of children and adolescents in the parent-child relationship. The study stems from the observation that the traditional discussion on emotional abandonment, centered on the dichotomy between the duty to love and the duty to care, is insufficient to guarantee the realization of the fundamental rights of offspring, especially in a social context marked by power asymmetries and vulnerabilities. The central research problem lies in the need to reinterpret the content of parental duties and to operationalize them in order to prevent the occurrence of harm, rather than merely remedying them later. The central hypothesis of the thesis is that preventive civil liability, by prioritizing the protection of the fundamental rights of children and adolescents, offers a more adequate theoretical and instrumental framework to deal with parental abandonment, allowing for the construction of intervention strategies that aim to mitigate risks and promote the healthy development of offspring. To support this hypothesis, the thesis is structured into five main sections. The first section addresses the theory of the diagonal effectiveness of fundamental rights, adapting it to the parent-child relationship and demonstrating how this approach allows for overcoming the traditional view of horizontal effectiveness, which presupposes a formal equality between the subjects of the relationship. The second section analyzes preventive civil liability as an instrument for the protection of fundamental rights, contrasting it with the traditional repressive view and highlighting the importance of prevention as a way to protect the personality rights of children and adolescents. The third section advances to the analysis of the conception of emotional abandonment, identifying its limitations and proposing a new approach that focuses on the non-compliance with objective parental duties, such as material assistance, upbringing, and education. The fourth section investigates the content of parental duties based on the fundamental rights of children and adolescents, conceiving the abandonment conduct as an objective illicit act, and not merely affective, and proposing a new classification of the types of parental abandonment (assistance, conviviality, and intellectual). The fifth section, finally, examines parental abandonment in light of the foundations of preventive civil liability, expanding the meaning of harm to include normative harm and proposing prevention instruments, such as the Parenting Plan and private penalties. The main conclusion of the thesis is that preventive civil liability, by prioritizing the protection of the fundamental rights of children and adolescents and by instrumentalizing parental duties, offers a more adequate framework to deal with parental abandonment, minimizing harm and promoting the healthy development of offspring. The thesis contributes to the field of Family Law by proposing a new approach to parental abandonment, centered on prevention and on the protection of the fundamental rights of children and adolescents, rather than solely on the compensation of damages.