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Brazil: Father Sentenced to Pay Compensation to Daughter for Abandonment

(May 7, 2012) On May 2, 2012, in an unprecedented decision, Brazil's Superior Tribunal of Justice (Superior Tribunal de Justiça – STJ) sentenced a father to pay R$200,000 (about US$105,000) to his daughter as compensation for material and emotional abandonment. According to the facts presented in the case, despite a judicial decision that had recognized his paternity, the father was absent during the girl's childhood and adolescence. The STJ decision guaranteed the right of the child to ask for compensation (indenização por dano moral) caused by emotional abandonment by a parent. In 2005, such an argument had been rejected by the Fourth Chamber of the STJ, which held that it was not possible to seek moral damages caused by this type of abandonment.

Initially, the case had been dismissed by the trial court in the State of São Paulo, because the judge found that the distance between father and daughter had been created as a result of the aggressive behavior of the mother towards the father. On appeal, the Justice Tribunal of São Paulo (Tribunal de Justiça de São Paulo – TJSP) reversed the decision, noting that the father was wealthy and prosperous and acknowledging the abandonment, and it set the compensation for moral damages at R$415,000 (about US$218,000).

On appeal to the STJ, the Third Chamber considered the award set by the TJSP to be too high and reduced the compensation to US$105,000. That amount must be adjusted, however, to reflect the monetary value of that figure as of November 26, 2008, the date of the decision issued by the TJSP. (Daniella Jinkings, Pela Primeira Vez, STJ Condena Pai a Pagar por Abandono Material e Afetivo, AGÊNCIA BRASIL (May 2, 2012).)

The STJ was created by the Constitution of 1988 (Constituição Federal, art. 92(II), PLANALTO.GOV.BR (last visited May 3, 2012)). The Tribunal is responsible for standardizing the interpretation of federal law in Brazil, following constitutional principles and guaranteeing and defending the rule of law (Atribuições,Superior Tribunal de Justiça website (last visited May 3, 2012).). The STJ is the court of last instance in the Brazilian legal system for consideration of issues not directly related to the Constitution. (Id.)

Moral damage (dano moral) is an offense committed against the non-pecuniary interests of a person or entity caused by a harmful act. Compensation for moral damage is not compensation for pain, shame, humiliation, or loss of peace or joy of living, but compensation for the damage to and injustice suffered by the offended party. The compensation is intended to give the offended party a benefit through the sum of money received and to satisfy his or her material needs as he or she deems appropriate or ideal, thereby relieving, in part, the suffering caused by the original damage. (2 MARIA HELENA DINIZ, DICIONÁRIO JURÍDICO 6 (São Paulo, SP: Editora Saraiva, 2005).)