Equipe eyeLegal
Rede Global de Direitos Civis
January 2009

The paternity fraud industry
Know everything about how they take away the people's children with
“marmalade”** in the Brazilian Justice

1. Temporary Custody under Presumptive Paternity

n excess of liberalism in family law has now become so glaring as to threaten the very foundations of our society. The public has a poor grasp of the developments in question, for some of them are bizarre, others repugnant, and still others, hilarious. An example of the latter is a recent bill, which – after running afoul of a presidential veto which knocked out half its content – infringes the very notion of equal treatment by eliminating the only right the presumptive father might have had in the proceedings. After all, there is no way for anyone to know who the true father is when, not infrequently, the mother is herself mistaken.

Unwarranted equivocations and shifts of meaning on the topic are not grasped by the public in Brazil. The very Constitution, which places masculine and feminine articles before “man” and “woman,” respectively, is cited as though "between man and woman" were generically understood. It is precisely the masculine and feminine articles contained in the original language, that make all the difference, in the sense of making it explicitly clear that what the law provides is that the union of two opposites – that specific union and no other – is what constitutes a family. Outside Brazil that happy situation was short-lived.

Out of the turmoil emerges the apocalyptic theory of “social” and “affective” entitlements to paternity, whereby a request is made that your child's birth record be legally falsified, and your name replaced by some other name. Yet this is not adoption, for adoption is provided in specific cases. It is an illegal form of adoption, whether the guise be Temporary Custody under Presumptive Paternity or Presumptive Custody under Temporary Paternity, for in the absence of any impediment, the best interests of a minor child lie with the child's natural family.

This sort of illegal adoption is practiced as follows: the natural father is alienated by an indefinite grant of temporary custody to someone else, continuances postponing a decision and regular visitation rights nullified with no foundation whatsoever – while all appeals are denied by the very same Superior Court Judge who issued the order in the first place.

Appearances suggest that the destruction of the family is indeed the primary thrust underlying the transformation unfolding before our eyes. That, together with the increasing impact of the media is so shifting the behavior of ordinary persons that men have begun behaving like women, and women to act like men.

2. Why it doesn't work

According toConsultor Jurídico", in an article whose title in English might well be “International Family, the phenomenon is called an “Action Declaring Social and Affective Paternity, Joinder for Child Custody, and Petition for Anticipatory Relief” – a Frankenstein patchwork of legalese.

The purpose of a declaratory action is to state whether or not a given legal relation or situation exists; to make a declaration. But where rights are concerned, a right only needs declaring if it doesn't exist. It will only come into existence if a court finding so declares... declaratory, ergo, declaration. Does that make sense? Yet all we have are uncertainties. Otherwise we could say, like David, unhand my boy. I am the father, here is the birth certificate, and all doubts would be laid to rest. All indications, however, are that these proceedings are nothing more than delaying tactics, so that while arguments unfold as to who is or is not the father, the child is being conditioned to recite to the judge that he wishes to remain with someone that is not his father.

If a thing does not exist it cannot be put on a fast track. There is no such thing as an "anticipatory father" or "temporary father." Nor can such a thing be scheduled, for that would be illegal, given the damage wrought by its irreversible nature. Observe that with every passing day, each passing year, the child’s perception of its father is corrupted toward the belief that the natural father is not true, but that the anticipatory, make-believe father, is.

Although there is nothing there but the mere possibility of a future ruling on the merit of this "socio-affective paternity," after five years of teaching the child to recite that it wants to stay with the stepfather, the damage done to the actual father and son will eventually be irreversible. That may suit the best interests of the judge, but certainly not of the child whose family and rights are thereby alienated.

The problem in all such cases is that the grant of custody is temporary and so must be renewed. It is as though paternity were provisionally asserted and reasserted ad infinitum so as to alienate the child from its real father, thereby bringing about in practice something the law does not yet provide. No such thing actually exists inasmuch as the stepfather has no rights as such. He possesses no more than a tenuous expectation with regard to some potential entitlement whenever the question is ultimately decided. In the absence of exceptional circumstances such as would preclude the child’s living with its natural father, there is, generally speaking, no social and affective entitlement to paternity in jurisprudence, so that it cannot preempt paternity as defined by law and the facts of nature. Thus custody cannot be granted to some outside party against the father’s wishes, and the thing is therefore a fraud.

The danger of irreparable harm arises from the irreversible effect of a rush into guardianship. It is pointless to cavil – alleging a growing fondness – or to argue that the one paying support is exercising custody, albeit illegal, makeshift, provisory... The resulting harm to the natural family is irreparable and irreversible. The Code of Civil Procedure provides, in its Article 273, §2, that "No anticipatory relief shall be granted when there is any danger that such preemptive grant might be irreversible."

One need only add that making a preemptive grant which the law forbids while denying the natural father visitation rights makes it obvious that the purpose of these proceedings is to exclude the true father, the paternal side of the family in its entirety, and create obstacles to the enforcement of an international search warrant – in violation of the Hague Convention on the Civil Aspects of International Child Abduction. Nobody – steeped in our Latin culture – wants any part of a stepfather forcibly taking a child from its father. A father will bring about an upheaval for his child...

Things have come to such a pass that a bill being debated by Congress in Argentina, by initiative of the Association of Fathers Alienated from Their Children (Apadeshi), would instruct Argentina's Ministry of Justice and Human Rights to create a "National Registry of Persons Obstructing Parental Ties." The same organization is pressing forward with another initiative, this one to provide criminal sanctions against anyone barring persons who do have visitation rights, as obstructive of their ties to minors or handicapped persons. Nowadays, this is one of the most frequent violations of human rights.

Even if there were no unsettled issues from so complicated a divorce, the substantive fact is that mere affinity (Civil Code established parental relation between stepfather and the son of the spouse) will not suffice in opposition to the rights of father and child. What stands in the way of the father’s right is no theory calling for social or affective paternity, but rather, the anticipation of custody, granted illegally, which keeps the child trapped in Brazil. Hence, the theory of social and affective entitlements to paternity is no more than an argument – a justification which fails the test of law – in a petition for preemptive custody. Providing the foundation for the farfetched supposition that anything so absurd as coercive adoption will find favor in the courts, we have precisely the time elapsed, upon which sandy foundation a grave injustice is to be erected. It is manifestly clear that provisional custody may not be granted in these kinds of proceedings, because it cannot wait indefinitely for a ruling on a purported second paternity [sic]. In all such cases, custody would only be awarded after judgment of the merits, since it is through custody that those exercising it stand in opposition to the parents. It is not something that can be petitioned for since there is no way to restore the passing years, in which injury is done to the very family the government is under a special obligation to protect.

Hence, keeping the minor child in Brazil against the father's wishes constitutes illegal coercion and abuse of power.