The alternating guard is a form of arranging child custody following parental separation, distinct from the shared guard, with unique features affecting the child’s schedule and parental duties.
Lawyers specializing in Family Law must have a thorough grasp of this field, including its legal implications and effective strategies to help clients navigate custody battles.
This article details the functionality of the alternate guard, outlining its pros and cons, as well as the situations in which its use is advised. Join us to learn more!
Learn all about parental alienation and how to demonstrate it
How does the Alternate Guard function and what is its purpose?
Children are under the care of each parent on a rotating basis for set periods in the alternate custody arrangement.
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 under their care.
This model is not specifically provided for in Brazilian law and has limited applicability. The prevailing legal interpretation emphasizes shared custody, where both parents collaborate on decisions regarding the child’s life regardless of the time spent together.
The substitute guardian can help maintain better harmony in living arrangements, but crucial choices regarding the child’s welfare should be made jointly.
What is multi-parenting and how does it alter the legal implications for families?
Difference between Alternate Guard and Shared Guard.
The alternate guard and the shared guard have significant distinctions despite causing confusion.
| Feature | Alternate Guard | Shared Guard |
|---|---|---|
| Time of coexistence | Children take turns living at different residences | Children may have one main residence, but time is divided between parents |
| Decision making | Each parent independently makes daily decisions during their custody period | Decisions are jointly made by parents |
| Residence | Children reside in two different places | Children may have only one primary residence |
| Regulation | Not explicitly stated in the Civil Code | Given priority under Article 1.584, §2 of the Civil Code |
Important decisions regarding the child’s well-being should be jointly made by both parents, even in cases of shared custody.
The rotating custody arrangement is not specifically addressed in Brazilian law, in contrast to the preferred shared custody model outlined in the Civil Code.
The rotating guardian can be used in certain situations as long as it is shown to be in the child’s best interests.
When is the Alternate Guard used?
The rotating custody arrangement is not the primary choice of the Brazilian legal system as it may cause instability for the child who has to adjust to two different schedules and living arrangements.
However, it can be implemented in scenarios such as:
- When parents are in agreement and show they can provide a positive environment for their children, they can make decisions together.
- To prevent disruptions to children’s school and social life, it is important to maintain proximity between homes.
- If the child’s emotional well-being is not affected, it is acceptable for children to show adjustment and acceptance when moving between homes.
- Effective communication between parents is crucial in order to prevent conflicts that may impact children when their relationship is positive.
The judge will always assess if this type of custody aligns with the child’s best interests, which is the primary factor in determining any custody arrangement.
Advantages and drawbacks of the Alternate Guard.
Benefits
- Balanced interaction with both parents enables the child to have a close relationship with both parents.
- Parents’ increased involvement in the upbringing process is essential for effective parenting during their time with the child.
- Both parents share financial and educational responsibilities more evenly.
Drawbacks
- Frequent changes in living arrangements can impact a child’s ability to adapt, increasing the risk of emotional instability.
- Routine maintenance challenges can affect school matters and extracurricular activities.
- Possible disagreements between parents may arise due to variations in upbringing and daily schedules.
The alternative guardian is suggested only when parents have a strong bond and can uphold a structured schedule for their children.
Legal considerations of the Alternative Custody in Brazil
The alternative custody is not specifically stated in the Civil Code, but it can be implemented following the principle of prioritizing the child’s welfare.
Article 1.584 of the Civil Code requires shared custody to be favored in cases where parents cannot agree, but gives the judge the authority to choose a different custody arrangement if it is in the best interest of the child.
If the mother and father do not agree on child custody, shared custody will be implemented unless one of them declines custody or there is evidence of domestic violence.
The alternating custody can be awarded based on this device if parents demonstrate that it better suits the child’s needs.
Jurisprudence regarding the Alternate Guard
The alternative custody arrangement, which is not explicitly outlined in the Civil Code but is a creation of legal doctrine and jurisprudence, may be recommended based on forensic and psychosocial assessments when there is a consistent rotation of residences leading to a loss of stability for children. If children have successfully adapted to this arrangement over a period of three years and have a well-established routine with both parents, it may not be detrimental to their well-being and could align with the principles outlined in Article 227 of the Constitution.
The court decision prioritizes the well-being of the child in cases involving minors, rather than adhering to the initial request made. The decision to maintain the current alternating custody arrangement was deemed appropriate, considering the child’s best interests and emotional stability.
Practical advice for attorneys handling cases involving Alternative Custody arrangements.
Family Law attorneys are crucial in determining and negotiating child custody arrangements.
The backup caregiver can be a successful option for safeguarding the child’s welfare, but it necessitates thorough preparation and attentive legal oversight.
Next, review some important instructions for lawyers managing such cases.
Agreement terms clarity
To prevent future disputes, it is crucial to include clear clauses in the security agreement. The agreement should cover:
- The duration that the child spends with each parent.
- How will vacation periods, holidays, and special dates be allocated?
- Each individual is accountable for their financial obligations.
- Household change rules and parent communication guidelines.
Children’s best interests should be prioritized.
All decisions should be guided by the child’s best interests. To do this, the lawyer 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 affects school and social adjustment.
Parent communication planning
The alternate caregiver depends on effective communication among parents to ensure smooth operation. The attorney might recommend:
- Utilization of apps to manage schedules and finances.
- Establishing a dedicated communication platform for addressing issues related to the child.
- Defining clear guidelines for medical, educational, and extracurricular activities.
Conflict resolution through mediation
The lawyer can propose ways to prevent long disagreements if parents have conflicting views.
- Mandatory mediation clauses must be included before turning to the courts.
- Suggestion of a family mediator for settling conflicts.
- Encouraging conversation and adapting to the child’s needs.
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It is crucial to safeguard the child’s interests and enable parents to maintain a harmonious relationship.
The lawyer greatly helps create a better environment for everyone by adhering to these instructions and aiding in the development of explicit and practical agreements.
The lawyer’s role in protecting the child’s best interests
The alternative custody arrangement can help maintain the child’s relationships with both parents, but it needs to be implemented carefully to protect the child’s emotional well-being.
Although not the main form in Brazilian law, jurisprudence allows its use when it aligns with the minor’s best interests.
Lawyers specializing in Family Law must grasp the legal and practical implications of shared custody 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 crucial for safeguarding the rights of children and supporting their healthy development, in addition to advocating for the interests of the parents.
Access our article about Successful Planning for guidance and useful tips.
What is kept as a substitute?
The child lives with each parent for specified periods in turn in this model.
What distingushes alternate guard from shared guard?
In one scenario, the child moves to a different home, while in the other, parents share decision-making but the child lives in a set location.
Is the substitute goalkeeper allowed in Brazil?
Although not explicitly stated in the law, it can be used in specific situations when deemed more suitable for the child’s welfare.
How does the alternating guard function in practical situations?
The child divides their time equally between both parents, for example, by spending alternate weeks or months with each.
What benefits does switching guard offer?
It promotes a harmonious relationship with both parents and avoids parental alienation.
What are the drawbacks of using the alternating guard?
Constant changes in living arrangements can cause emotional instability and logistical challenges for the child.
Can the child select the rotating guard?
The judge may take into account the child’s viewpoint depending on their age and level of maturity.
Should the substitute guard be specified in the ruling?
It is advisable for it to be formalized through a court decision or an approved agreement.
Does the substitute guardian impact the spousal support payment?
Usually, in most cases, both parents typically share the costs directly.
Can the alternative guard be switched around?
If it is demonstrated that the arrangement does not serve the child’s best interests, the judge can change it.
