The alternating custody arrangement is a method of structuring child care following parental separation. It is distinct from shared custody and has specific features that affect the child’s schedule and the parents’ duties.
Lawyers specializing in Family Law must comprehend this type of law, its legal consequences, and effective strategies to aid clients in custody disagreements.
In this article, we discuss the functioning of the alternate guard, its pros and cons, and the scenarios where it is advisable to use it. Join us!
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How does the Alternate Guard function and what is its purpose?
Children in the alternate custody arrangement switch between living with each parent for set time periods, such as weekly, every other week, or monthly, as determined by mutual agreement or court order.
In this model, both parents share custody of the children in a more balanced way, with each parent taking sole responsibility for the children when they are in their care.
This model is not specifically outlined in Brazilian law and has limited use because the prevailing legal interpretation favors joint custody, where both parents collaborate on decisions regarding the child’s life, irrespective of cohabitation time.
The alternate guardian can help maintain better balance in living together, but crucial decisions regarding the child’s welfare should be made jointly.
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Difference between Alternate Guard and Shared Guard.
The alternative guard and the joint guard have significant distinctions despite causing confusion.
| Feature | Alternate Guard | Shared Guard |
|---|---|---|
| Time of coexistence | Children switch between residences for specific periods | Children may have a primary residence, but time is divided between parents |
| Decision making | Each parent independently makes day-to-day decisions during their custody period | Decisions are made jointly by parents |
| Residence | Children have dual residences | Children may have a single fixed residence |
| Regulation | Not explicitly stated in the Civil Code | Given priority under Article 1.584, §2 of the Civil Code |
Even with shared custody arrangements, both parents should make important decisions regarding the child’s well-being.
The alternating guard is not specifically addressed in Brazilian law, unlike the shared guard, which is the preferred model according to the Civil Code.
The alternating guard can be used in certain situations, as long as it is shown to be in the child’s best interest.
When is it possible to use the Alternate Guard?
The rotating custody is not the primary choice in Brazilian Justice as it may cause instability for the child who has to adjust to two distinct schedules and living arrangements.
It can be implemented in scenarios such as:
- If both parents agree and show they can provide a positive environment for children, it is considered a consensus.
- To prevent disruptions to children’s school routine and social interactions, it is important to maintain a sense of proximity between homes.
- If children show adjustment and approval, switching between homes should not negatively affect their emotional health.
- Effective communication between parents is crucial in maintaining a positive relationship and preventing conflicts that may impact their children.
The judge will always examine whether this mode of guard meets the principle of the best interest of the child, which is the fundamental criterion for the definition of any guard regime.
Advantages and disadvantages of using the Alternate Guard
Benefits
- The child can have a close relationship with both parents through balanced contact.
- Parents’ increased involvement in raising their children is essential for effective parenting during their time together.
- Both parents share financial and educational responsibilities more fairly.
Drawbacks
- Frequently changing homes may impact a child’s ability to adapt, leading to emotional instability.
- Routine maintenance can become challenging due to school-related matters and extracurricular activities.
- Potential parent conflicts can arise from variations in upbringing and daily schedules.
The alternate guard is best suited for parents with a strong relationship who can establish a structured routine for their children.
Legal Aspects of the Alternative Custody in Brazil
The Civil Code does not specifically mention the alternate guard, but it can be used by considering the child’s best interest.
Article 1.584 of the Civil Code emphasizes the importance of shared custody in cases where parents cannot agree, but also grants the judge the authority to choose a different custody arrangement if it is deemed more advantageous for the child.
If the mother and father do not agree on child custody, both parents can share custody unless one parent refuses or there is evidence of domestic violence.
The alternating custody arrangement can be approved if parents demonstrate that it aligns better with the child’s needs.
Jurisprudence on the Alternate Guard
The alternative custody arrangement, although not explicitly stated in the Civil Code, is a practice recommended by legal and judicial experts based on forensic and psychosocial assessments. When children are accustomed to this arrangement and have a stable routine with both parents, it aligns with the best interests of the children and adolescents as outlined in Article 227 of the Constitution.
The court decision prioritizes the child’s well-being over the parents’ requests, especially when it comes to custody arrangements. In this case, the alternating custody schedule was deemed appropriate and in the child’s best interest, as confirmed by a psychologist’s evaluation. It was determined that changing the custody arrangement could negatively impact the child’s emotional stability without providing any clear benefits.
Practical advice for lawyers handling Alternative Custody cases
Family Law attorneys are crucial in negotiating and determining child custody arrangements.
The substitute caregiver can be a successful option for safeguarding the child’s welfare, but it necessitates thorough preparation and meticulous legal supervision.
Review important recommendations for attorneys handling such cases.
Agreement terms clarity
To prevent future conflicts, it is crucial to have clearly outlined clauses in the guard agreement.
- The duration of the child’s stay with each parent.
- How will breaks, holidays, and special occasions be distributed?
- Each individual is responsible for their own financial obligations.
- Household change rules and communication guidelines for parents.
Child’s best interests maintenance
All decisions should be guided by the best interest of the child. In order to do so, the attorney can take into account:
- The child’s age and daily schedule.
- The closeness of the parents’ homes.
- The child’s relationship with each caregiver.
- Adapting to the new guard model impacts school and social integration.
Parent communication planning
Effective communication between parents is essential for the alternate guard to function smoothly, as advised by the lawyer.
- Utilizing apps to manage schedules and finances.
- Establishing a dedicated communication channel for addressing child-related issues.
- Definition of explicit guidelines for medical, educational, and extracurricular endeavors.
Conflict resolution through mediation
The lawyer may recommend ways to prevent long-lasting disagreements if parents encounter differences.
- Mandatory mediation clauses are required before resorting to the court system.
- Suggestion of a family mediator for settling disagreements;
- Encouraging conversation and adapting to the child’s needs.
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It is crucial to safeguard the child’s best interests and ensure parents can maintain a harmonious relationship.
The lawyer plays a key role in creating a positive environment for everyone involved by following these guidelines and helping to establish clear and effective agreements.
The lawyer plays a crucial role in protecting the child’s best interests.
The option of alternating custody can help maintain a child’s relationships with both parents, but it should be implemented carefully to protect the child’s emotional well-being.
Although not the primary form according to Brazilian law, jurisprudence allows its use when it is proven to serve the child’s best interests.
Understanding the legal and practical aspects of joint custody is crucial for Family Law attorneys to help their clients make well-informed and legally sound decisions.
The professional needs to be ready to create thorough contracts, encourage mediation, and strategically prevent conflicts that could negatively impact the child.
Advocacy is essential for protecting the rights of the child and ensuring that decisions about custody support their healthy development.
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