Responsabilidade civil à luz da teoria da perda de uma chance no direito de família: análise da possibilidade de indenização por subtração do direito de convivência parental

Abstract

This paper aims to analyze the application of the loss of a chance theory within Family Law, particularly concerning the possibility of compensation for the unjustified deprivation of the right to parental coexistence. The research demonstrates that the right to family life is a fundamental value, guaranteed by the 1988 Federal Constitution and the Statute of Children and Adolescents, and is essential for the psychological, affective, and moral development of children and adolescents. The violation of this right, through unlawful or abusive conduct by one of the parents, may give rise to civil liability, especially when there is concrete frustration of the opportunity for coexistence between parents and children. The loss of a chance theory, traditionally applied in other areas of law, proves suitable to justify compensation in situations where the deprivation of coexistence prevents the full exercise of parenthood and undermines the family’s affective bond. The study also shows that parental alienation is the main cause of such violations, constituting moral and psychological abuse with significant legal, emotional, and social consequences. It is concluded that applying the loss of a chance theory in Family Law strengthens the protection of existential rights and the protective function of civil liability, in accordance with the constitutional principles of human dignity, solidarity, and the best interests of the child