Criança e adolescente sob guarda de avós: proteção integral, dignidade da pessoa humana e reflexos previdenciários

Abstract

The custody of children and adolescents by their grandparents is a complex protection instrument and social fact, a result of multiple factors such as population aging, solidarity, new family formations, and the necessity of such families to readapt due to external and internal factors, in a proper dynamic. The present scientific study aims at analyzing the Brazilian legislative positioning on the custody of children and adolescents by grandparents, and the social welfare effects on the perspective of full protection of their grandchildren. Thus, the dissertation was organized in the form of scientific articles. In the first article we sought to identify the influence of the demographic factors in the occurrence of the custody of children and adolescents by grandparents and their relation to familiar roles updating. Next, in the second article, we intended to appraise the precept of custody in its historical-normative evolution, its relation to full protection, how it develops in social-affective relationships and regarding the Judiciary. The third article aimed at discussing the social welfare protection granted to the children and adolescents under custody in the national judicial ordainment in the face of the principles established by Human Rights, in the historical and political perspective. The data verified demonstrate the representation of intergenerational families constituted of grandparents and grandchildren, in counterpoint to the aridity of the national academic production on the theme, evidencing the paradox in which the subject finds itself. The conjunction of two themes of incontestable social, welfare rights, children and adolescents’ rights relevance contributes to the importance of the study. The methodological strategy used was of qualitative nature, with interdisciplinary literature revision, legislative and jurisprudential revision, analysis of demographic data from the Brazilian Geometry and Statistics Institute (IBGE) and documental analysis of 25 (twenty-five) custody processes in progress in the Family, Children and Youth Courts in Bahia State. The results indicate that the custody requests carried out by grandparents are still quantitatively important in the researched universe, configuring an instrument of protection and guarantee of the human rights of children and adolescents deprived of a daily relationship with their parents, and reaffirming the maintainer role of family and communitarian links. In view of the data collected and the ample theoretical material analyzed, we observe that the restriction of children and adolescents’ welfare rights constitutes an element dissonant to the thinking of social justice and absolute child-youth priority, hovering with an expressive shadow of unconstitutionality and hurting the principle of the human being’s dignity.