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The panel understood that recognition was possible even with the presence of the biological parents in the civil registry.

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Thursday, November 21, 2024

 

Updated at 11:46

 

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The 3rd panel of the Superior Court of Justice validated the recognition of socio-affective affiliation between grandparents and grandchildren of legal age, in situations that transcend mere grandparental affection.  The panel understood that the declaration of affiliation, in these cases, producing direct effects on the civil registry, does not encounter legal obstacles.

 

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The decision was handed down in a case in which a grandson sought recognition as the socio-affective son of his maternal grandparents, without prejudice to maintaining the name of his biological mother, with whom he also lived, in his birth certificate.

 

In the first instance, the case was dismissed without resolution of the merits. The decision was upheld by the Court of Justice of São Paulo, on the grounds that art. 42, § 1, of the ECA - Statute of Children and Adolescents prohibits the adoption of grandchildren by grandparents.

 

 

STJ recognized socio-affective affiliation between grandparents and adult grandchildren. 

The rapporteur, Minister Nancy Andrighi, clarified that the aforementioned ECA provision applies to the institution of adoption and not to socio-affective filiation, especially when it comes to the recognition of filiation of those over 18 years of age.

 

The minister differentiated the institutes, highlighting that socio-affectivity, unlike adoption, does not imply the removal of the parental power originating from the biological bond.

 

This is, in fact, the recognition of a factual situation already experienced, which demands a ruling from the Judiciary regarding the existence of an already consolidated bond , he added.

 

He emphasized that the recognition of socio-affective affiliation is possible even if paternity or maternity is recorded in the birth certificate, considering the principle of multi-parenthood, in accordance with theme 622 of general repercussion of the STF.

 

The rapporteur also mentioned the applicability of art. 505, § 3, of provision 149/23 of the CNJ to cases of voluntary recognition of socio-affective affiliation in civil registry offices.

 

Regarding procedural interest, the minister explained that this must be assessed based on the theory of assertion, that is, on the information presented by the author in the initial petition.

 

Thus, the presentation of sufficient evidence of the existence of socio-affective ties between the parties already authorizes the continuation of the action.

 

 Socioaffective affiliation, which is based on article 227, paragraph 6, of the Federal Constitution , involves not only adoption, but also kinship of another origin, as introduced by article 1,593 of the Civil Code of 2002, in addition to those arising from consanguinity originating from the natural order, in order to contemplate socioaffectivity arising as an element of cultural order , he highlighted.

 

Given the granting of the special appeal, the minister ordered the return of the case to its origin to regulate the processing and production of evidence, including the citation of the biological mother and the demonstration of the socio-affective relationship by all those involved.

 

The case number is under judicial secrecy.

 

Information: STJ.

 

 link: https://www.migalhas.com.br/quentes/420221/stj-reconhece-filiacao-socioafetiva-entre-avos-e-neto-maior-de-idade