Dano moral por abandono afetivo: o dever de cuidar e a obrigação de reparar nas relações de filiação

Abstract

The objective of this study is to examine the possibility of repairing the moral damage caused by the affective abandonment suffered by children, particularly on the process of constitutionalization of Civil Law and the consequent repersonalization of Family Law. As a result of the consecration of the principle of human dignity in the Brazilian constitutional order also family relationships began to be functionalized by reason of the dignity of each of its members, and especially of the person of the children. Enquires, in this context, whether any infringement of personality rights of those children caused by those who should give them greater protection - their parents - would be immune to the application of the institutes of civil liability, due to the special nature of this relationship. This issue recently brought to the knowledge and appreciation of the Superior Court. Through the study of doctrine and jurisprudence on the matter, it was initially to outline the concept of moral damage itself, referring also to their different classifications and their repairability. Then it was defined what would be the affective abandonment, highlighting the changes occurring in family institutions and relations of affiliation, as well as some of the principles most relevant to resolution of the dispute. Finally, it was proceeded the qualification of emotional distance as a category of moral damages, undertaking the analysis of arguments for and against the repair, beyond the assumptions that would be required to do so. The survey revealed clear divergence both in doctrine and jurisprudence on the matter, it being understood, however, by the possibility of the repair.