Theses defended

O princípio da igualdade dos progenitores ao princípio da inseparabilidade dos filhos: a residência alternada como via privilegiada da sua afirmação e o biologismo como último sustentáculo do mito da perenidade do «casal parental»

Hélder João Martins Nogueira Roque

Public Defence date
January 10, 2023
Doctoral Programme
Law, Justice, and Citizenship in the Twenty First Century
Guilherme de Oliveira
There is today an ongoing shift in Family Law in which the stability of the institution is losing precedence over the superior interests of the individuals, namely in favour of their intersubjective relationships and the fundamental rights of each of its members, including most importantly those concerning minors. Indeed, the affective dimension has seized an unprecedented standing in judicial settings, in recognition that its disregard fundamentally negates the bonds that pre-exist within a family.

In view of joint custody, that is, the shared right to exercise parental responsibilities, being proposed by the legislator of the 2008 Reform (Decree-law no. 61/2008, of October 31, published in the Official Gazette of the Portuguese Republic) as the default model of child custody, and considering its current subdivision in two dominant forms of implementation, joint legal custody and joint physical custody, a case is made here in favor of the latter being established as the preferred choice, independently of whether an agreement between both parents can be reached, except when deemed harmful to the best interests of the minor(s), since it permits the continued exercise of positive parenting and safeguards the youth-parent affective bond.

Any judicial construct arising from the legitimate right of the spouses to file for divorce that opens the possibility of severing the emotional bond with their minor children, and the consequent exclusion of the non-resident parent from maintaining an active role in their education, against his/her will, is deemed contrary to the constitutional provisions that guarantee equal rights in marriage to both spouses as well as to both parents in the upbringing of their progeny, at heart asserting all parties to be inseparable and inextricably intertwined.

This shared exercise of parental responsibilities implicitly holds the idea of preserving the myth of a united family, in an attempt to ease the transition to the new reality as a «parental couple» that comes to exist in lieu of the «marital couple». This concept overcomes a previously embedded belief in society that saw in marriage an indissoluble contract and finds support in the biological bond, which constitutes the last remnant of a united family, still to this day the basic structural cell of our culture.

While parenthood cannot be solely underpinned by the biological context when responsibility and interpersonal criteria are not equally upheld, it is notoriously difficult to surpass entirely all biological biases, namely the underlying man-woman complementarity or, at least, the binomial bond of a two-party relationship, in light of an adequate exercise of parental duties.