A flexibilização da proibição da adoção avoenga pelo Superior Tribunal de Justiça: o princípio do melhor interesse da criança e do adolescente frente ao art. 42, § 1°, do ECA

Abstract

This study addresses the theme: "The relaxation of the ban on grandparent adoption by the Superior Court of Justice: the principle of the best interests of the child and adolescent vis-àvis Article 42, §1, of the Child and Adolescent Statute (ECA)." Accordingly, the primary objective is to identify the requirements applied by the Superior Court of Justice (STJ) for granting grandparent adoption. The study stems from the observation that the social phenomenon of grandparents raising grandchildren—due to the abandonment, death, or incapacity of biological parents—drives the pursuit of legal formalization of the parent-child bond, given that this relationship already exists in practice. The research problem is guided by the following question: Is the consolidation of a socio-affective bond between grandparents and grandchildren, in itself, sufficient grounds to overcome the legal impediment to grandparent adoption? Data were analyzed using a qualitative methodology. The procedures adopted involved thorough bibliographic research based on relevant legal doctrine, a review of articles and scientific papers from online institutional repositories, and a detailed analysis of the STJ’s judicial stance regarding the possibility of relaxing the ban on grandparent adoption. The results indicate that it is not enough for grandparent adoption to be beneficial in the abstract; a detailed analysis of each specific case is required in light of the necessary criteria. This aims to strike a balance and determine the measure that best serves the child's or adolescent's interests, given the constitutional duty shared by the State, the family, and society to ensure the comprehensive protection of minors with absolute priority. Furthermore, the relaxation of the legal prohibition remains confined to truly exceptional situations where a literal application of the rule would yield a result manifestly contrary to the best interests of the child or adolescent—the only value capable of justifying a departure from the sub-constitutional rule.