Do dano moral por abandono afetivo e sua quantificação

Abstract

Parents who abandon their children must be condemned to pay moral damages in order to compensate the damage (restorative function) and punished for the detrimental and illicit act they practiced (punitive function). That is because parents must raise and educate their children, and must also have them under their care, independent of material support, also in respect of the principle of Solidarity, as an indelible mark of family relationships, and the principle of Human Dignity. The difficulty consists of ascertaining causation – a matter of fact rather than of Law – between the damage and the illicit act, therefore the judge must always make use of psychological experts, which will determine, furthermore, the gravity of the damage. Especially with moral damage – unlawful deprivation of exercise of a highly personal subjective right –, each case is particular, which makes it practically impossible to create patterns of values for the damages or even a tariff pattern. Brazilian courts have been accepting the thesis to compensate abandoned children, but the Superior Court of Justice, responsible for the standardization of the interpretation of federal law in the entire country, although still far from uniformizing the question, has been considering impossible to hold a parent liable for the abandonment of a child, for nobody should be forced to love, being the loss of the family power the only penalty to be suffered by the parent, for the civil liability institute cannot be applied to Family Law, which has its own rules. Not compensating damages derived from illicit acts, except for parental alienation or prescription cases, means a true affront to the institute. It is not about demanding love from parents, for there is no law – except the divine – that obliges someone to love their children, but the transgressor must compensate the abandoned minor who was victim of a psychological damage, as much as there should be compensation for someone who suffered an injury in their honor and dignity, attributes of personality which are equally impossible to be quantified.