Reconstruindo a adoção unilateral pelo padrasto à luz do melhor interesse da criança e do adolescente e da parentalidade responsável

Abstract

This study aims to present a renewed interpretation of the legal framework governing unilateral adoption by a stepfather, in light of the principle of the best interest of the child and the adolescent and the principle of responsible parenting. As set forth in Article 41, §1 of the Child and Adolescent Statute (Law no 8.069/90), this form of adoption requires the complete dissolution of the original legal parent-child relationship and its replacement with a new bond connecting the adoptee to the mother and the stepfather. However, the analysis developed throughout this work demonstrates that these rules fail to reflect the complexity of contemporary family structures and are incompatible with the constitutional principles of the best interests of the children and the adolescents, as well as the principle of responsible parenthood. Through the examination of doctrinal studies and judicial cases, it becomes evident that unilateral adoption has often been used primarily as a means of validating a new marital union in the eyes of the society – thereby marginalizing the adoptee’s role in the process and, in many cases, favoring the legal father who abandoned the child. Thus, employing a civil-constitutional methodological approach and a deductive-exploratory framework, this article advocates for a renewed interpretation of the rules governing the unilateral adoption, in light with the principles provided under the constitution. It proposes the recognition of multiparentality or, alternatively, the possibility that the termination of the original parental bond should affect only the rights of the parent who has failed to fulfill their parental duties and has been divested of parental authority, without extinguishing the legal rights of the adoptee.