Parental responsibilities are part of what the Brazilian Civil Code calls “parental authority”, a set of duties and rights that both parents have over their minor children (under 18 years old).

Both parents exercise this authority, regardless of the status of the parents’ relationship, and it arises from both natural parenthood and legal or socio-affective parenthood. Parental authority is non-renounceable and non-transferable, even if the minor is under the temporary responsibility of a third party. It can, however, be revoked by the courts in extreme cases or be extinguished through emancipation (ie, parents agree to make minors aged between 16 and 18 capable of all acts of civil life).

Parents must assist, raise, educate, provide material and emotional support, as well as exercise custody. They may grant or deny consent for the children to marry, to travel abroad or to move permanently to another city/state or country.

The Brazilian Civil Code assumes that the mother is the one who gives birth to the child. Exceptions to this presumption are cases originating from assisted reproduction techniques (surrogate pregnancies), in which the birth mother will not have parental authority.

As a rule, after birth, the father must acknowledge the child before the civil registry, taking with him a birth declaration (declaração de nascido vivo – “CNV”) provided by the hospital. If the child was not born in a hospital, the parents must go to a registry office with two witnesses over the age of 18 who can confirm the pregnancy and birth. In this case, the birth declaration is issued by the registry office or by the health department of the city or state.

In Brazil, paternity is presumed during marriage or a “stable union” (a constitutionally recognised common-law union) in the following situations:

• children born 180 days after the start of marital/stable union cohabitation; and
• children born within 300 days of the dissolution of the marriage (or stable union).

Other cases of presumption relate to assisted reproduction techniques, such as children born through homologous artificial insemination, that is, where genetic material from both parents is used (surrogate births), or heterologous artificial insemination, where some of the genetic material used is donated by a third party through legalised clinics and where the other parent has authorised the procedure.

Parental rights arising from assisted reproduction techniques are not yet reflected in federal law, but are widely enforced by the courts and are the subject of Resolution 149/2023 from the National Council of Justice (“CNJ”) and Resolution 2.320/2022 from the Federal Council of Medicine (“CFM”). Furthermore, a preliminary draft of a new Civil Code, which includes provisions on these rights, was recently submitted to the National Congress. As a result, it is possible that federal law on this matter will be enacted within a few years.

There are three possibilities for non-biological parentage:

• adoption (see 1.7 Adoption);
• assisted reproduction techniques with genetic materials donated from a third party; and
• socio-affective parentage.

In the case of assisted reproduction parentage, although the genetic material comes from a third party, Resolution 149/2023 of the CNJ and Resolution 2.320/2022 of the CFM allow the registration of these children by the receivers of the donated genetic material, and not by the donor.

Socio-affective parenting allows parents and children to declare each other as family through affection. This possibility was admitted by a Federal Supreme Court ruling (RE 898.060/SC) from 2016 and has been widely applied ever since. It is often seen in cases of children raised by stepfathers or stepmothers. The recognition of filiation can be made at a notary’s office or by means of a lawsuit, depending on the circumstances.

As mentioned in 1.3 Requirements for Fathers, there is a presumption of parenthood for children born during the marriage. This presumption is relative and can be challenged, and DNA testing might be used if necessary.

Parents do not, however, need to be married to register their child. The parents’ declaration to a notary public is the only document necessary. If there is no declaration signed by the father, the mother can register the child only with her name and the father can register the paternity at any time, spontaneously or in compliance with a judicial decision.

There is no difference when it comes to parenting for same-sex couples, who can exercise custody or establish cohabitation with their children just like heterosexual couples.

Adoption is regulated by two statutes: the Child and Adolescent Statute (CAS) and the Adoption Law (Law No 13.509/2017).

Adoption is a parental-child bond created by choice, and not by biological ties. In Brazil, it is possible to adopt children, adolescents and adults.

Adoption is an exceptional measure that should only take place when it is impossible to keep the child or adolescent with the natural family (ie, the parents) or with the so-called extended family, who are close relatives.

The adopter must be over 18 and at least 16 years older than the child or adolescent they want to adopt, have family and financial stability, as well as no criminal record, and must be prepared to undergo a social and psychological assessment. The full proceeding includes a thorough family analysis. Also, there may be a waiting list for newborns and young toddlers.

Adoption is available for couples, regardless of sexual orientation (bilateral adoption), or for individuals. It is also possible for a stepfather or stepmother to adopt their stepchild in a so-called unilateral adoption.

Once the adoption proceeding is finalised, the legal and familial ties between the child and their biological family(one parent in the unilateral adoption and both parents in the common adoption) are permanently severed.

In the context of joint parental authority, both parents must consent to the child’s international relocation. In the event of a disagreement, the court of the child’s habitual residence will issue a ruling, determining the matter based on the best interests of the child.

If the other parent opposes the relocation, the parent seeking to move with the child must submit the matter to the family court. The family judge will then decide based on the best interests of the child.

Relocations within the same country are most common, but the best interests of the minor remain paramount. When a change of domicile occurs within the same city, the other parent’s authorisation is not required.

However, if the move is to another city or state (which may mean a very long distance due to the sheer size of Brazil), either the express consent of the other parent or judicial authorisation is necessary to prevent potential issues of parental alienation, as the relocation may impact the left-behind parent’s visitation rights. Both parents, regardless of their marital status, share full parental authority, which includes the right to grant or deny consent for a permanent relocation to another city or state.

In Brazil, it is illegal to take a child or adolescent (ie, under the age of 18) away from their habitual residence without the consent of both parents, unless there is a judicial decision that replaces the consent of the refusing parent. The Hague Convention, however, is only applicable up to the age of 16.

Brazil became a signatory member of the Hague Convention through Decree-Law No 3413 of 14 April 2000. Accordingly, the return of a child who has been removed from Brazil, or is being retained within Brazilian territory, without the consent of one of the parents, must follow the procedural rules of the Convention, provided that the other country involved is also a member.

The procedure can take place exclusively through the central authorities of both countries or, if the left-behind parent wishes and is able to retain a private attorney, directly through the filing of a lawsuit before the local federal court asking for the search, seizure and return of the child.

The role of the Brazilian central authority is exercised by the Federal Administrative Central Authority (“ACAF”) and the General Coordination of Adoption and International Abduction of Children and Adolescents, part of the Ministry of Justice. The central authority receives and sends requests for international legal co-operation for the return of children abducted by their parents or relatives.

When a request from another signatory state is received by the Brazilian central authority, they analyse the request and check whether the requirements of the conventions for international abduction are present. If they are, and the central authority is unable to contact the parent who is holding the child and to mediate the situation, the central authority will forward the request to the Federal Attorney General’s Office (“AGU”) to file a lawsuit pleading for the search, seizure and return of the child before the federal court.

If the country from (or to) which the child has been abducted is not a signatory member of the Hague Convention or of any bilateral treaty, the case will still be considered an international abduction, but the lawsuit in Brazil will be filed before one of the lower courts (ie, a state court, not a federal court), and will be conducted along the same lines as a custody lawsuit.

Letters rogatory may be issued to the country where the abductor parent is with the child, and the federal police may be asked to include the abductor parent’s name and the child’s name on Interpol’s “wanted” list.

The left-behind parent may also file a lawsuit before the non-signatory country. The chances of successfully returning the child vary from country to country.

On the criminal side, abduction of children under the age of 18 is considered a crime, with a penalty of two months to two years of imprisonment. The judge may, however, waive the penalty if the child is returned safely.

Brazil has been a signatory to the 1980 Hague Convention since 2000, when Decree No 3413 of 14 April 2000 entered into force.

The Brazilian government has its own channels for dealing with cases of international abduction. Through the government’s official website it is possible to obtain information and access the official contact email address. 

In Brazil, it is not mandatory for the left-behind parent to retain an attorney, since the lawsuit can be filed through the AGU, which defends the interests of the Union, ie, compliance with the obligations contracted by Brazil in the Convention. The Union also provides material assistance to ensure the return is completed. However, retaining an attorney allows almost immediate access to the judiciary and can expedite the proceeding.

Brazil currently tends to comply with the Convention, and the federal courts have specific rules for this type of lawsuit, aiming to expedite the solution and favour international co-operation (Resolution 449/2022 from the CNJ). Nonetheless, some courts may have a more flexible interpretation of the exception of Article 13 (b) of the Convention and demand some degree of evidence (eg, expert examination) on whether returning to the country of habitual residence is in the best interests of the child. In less complex situations, the return can be enforced within a few months of filing the lawsuit, especially when the abduction is recent. In more complex cases, with children that have been kept in Brazil for longer periods, a final decision may take longer, even with the court’s frequent remarks recognising that time is of the essence in the proceedings.

The Federal Supreme Court is currently discussing the constitutionality of several articles of the Hague Convention, at the request of a political party (ADI 4245). The lawsuit’s aim is supposedly to protect Brazilian mothers and children who flee other countries due to vulnerability and domestic violence, but if ruled with grounds, the lawsuit might allow a substantially expanded interpretation of the exceptions of Article 13 of the Convention, making it less effective. The AGU and the Federal Public Prosecutor’s Office have opposed the requests and defended the constitutionality of all the articles of the Convention, with the dismissal of the claims.

Regarding costs, if a case is filed by the AGU, the procedure is free of charge for the left-behind parent, and the abducting parent can be held responsible for the costs of locating and returning the child. However, if the lawsuit is filed directly by the left-behind parent, the costs must be supported by them.

Brazil is a signatory to the Hague Convention.