Post-separation parenting in Brazil is changing, with more and more parents working out mutually suitable arrangements that allow both parents a share in the parenting experience. The biggest change, though, is that men want a greater recognition of the paternal role in parenting.
Lawyers say the best arrangements are worked out informally, without interference from courts. Only, the parents must be able to establish a mature relationship on the matter, in the interests of the children. "I got custody of our son because I was financially better off and had more time to care for him. My ex-wife wanted to devote more time to her career. But there were no rigid rules. Our son was with me one day, with her the next. We lived in the same street to facilitate this arrangement. Many people feel that a child should have a fixed home. I believe that if the child is comfortable, he will feel well," says José Carlos de Andrade Corrêa, 42, a lawyer whose son was 18 months old at the time of his divorce.
Brazilian law is also attempting to accommodate this complex new reality. The Brazilian Civil Code, 1916 was amended in January 2003. Under the old code, mothers were assigned priority in matters of child custody, and fathers were granted visiting rights. The law is now more flexible, with custody of the child going to the parent who is better equipped to raise the child. This process was set in motion with the Brazilian Child and Adolescent Statute, approved in 1990, which stipulated that when a child reaches adolescence - 12 years in Brazilian law - she can choose which parent she wishes to live with. Officially, joint custody is not yet part of the law.
According to the Brazilian Institute for Geography and Statistics (IBGE), in 1991, the country had 655,000 father-child families. In 2000, this number jumped to about 1.1 million. Although this number represents only two per cent of all homes in the country, the jump is phenomenal - in just nine years. It is estimated that men request custody in about 30 per cent of all custody suits in the country. And of the total number of separated parents, roughly 10 per cent of men are granted custody of their children.
Figures notwithstanding, a large number of separated parents - both men and women - see themselves caught in an unhappy situation. Fathers for instance, perceive themselves caught in the traditional bi-weekly visits format. Unhappy with judicial decisions, such parents have formed associations or groups to to work towards a change in the laws. The Association of Separate Parents of Brazil (APASE), created in March 1997 in the state of Santa Catarina, is represented in four other states as well today. The past five years have seen a number of similar associations springing up in various parts of the country.
The website PaiLegal (Nice Daddy), set up by programmer Paulo Habl in São Paulo, is another example. "At the time of divorce, we just wanted it over with and ended up accepting everything. I thought we could work everything out through dialogue later. That didn't work and I found myself confined to bi-weekly visits with my son," he says. His website argues strongly for paternal presence in a child's life after a couple separates. "Each time I met my son, we had to start over. After several frustrated attempts at demanding the right to practice my fatherhood, I gave up. At least my son was spared witnessing disputes he couldn't even understand. I cried for more than a year. One day, my son and I will face each other and the inevitable reality that all we have in common is the genes," Habl says.
IBGE estimates that between 1991 and 1998, while the number of divorces went up by 32.5 per cent, the number of marriages fell by six per cent. Habl says that about 20 years ago, men's view of paternity was very different, and that this has been changing gradually over the years. "Most men showed little interest those days. This emptied out my argument for a legislative change in favor of fathers. That is the social conditioning for men. Today, women have claimed their space in the job market, but men are still to claim their space at home with the children," says Habl. Women represent 35 per cent of the participants on Habl's website. Most of them log on, to discuss the absence of men from parenting.
However, more and more people are considering joint custody, where fathers and mothers share legal responsibility for children. Straightforward though the idea is, it is not yet part of the Civil Code. Advocate Sandra Regina Vilela, lawyer for PaiLegal, says, "Women should be the first to carry that flag. We cannot have a legislation that privileges women with the care of the children because that removes us from the job market. Practicalities aside, there is also the emotional side: children need both parents."
Few things in Brazilian law are implemented as seriously as the prison sentence for failure to pay child support. On an average, every week, 10 prison orders go out from the Rio de Janeiro court alone. Many of them are people who didn't pay small amounts of maintenance - BR$ 15 (1US$ = BR 2.6) to BR$ 60. They all have one justification: they are unemployed.
While the reality of Brazil's economic crisis impacts both women and men, women who are not earning independently are the hardest hit. "I don't want to sound frivolous, but it is my experience that a woman who is working (earning) is ready to share custody. But when the mother depends on maintenance for survival, she is worried about losing it if the child changes address," says Ademar Paulino de Arantes Filho, one of the directors of APASE. Filho lives 150 meters from his two children, aged eight and 12, but can only see them fortnightly.
According to IBGE data, in 1998, only in 301 (of 71,000 divorces) cases were parents given joint custody of the child. "We did everything we could so the child is not harmed. Parents have to put aside selfishness to find a way to share the pleasure and responsibility of bringing up children after their separation. When my son was very small, I changed diapers and fed him from a bottle. It was enormously satisfying. It's nice to remember him sleeping on my stomach," says Corrêa, whose son is 12 years old today.
For parents to address custody issues in consideration of the best interests of the child is a welcome development, of course. But long term and favorable solutions can only be sustained if the social and economic realities are simultaneously addressed.