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STJ, 3ª Turma, REsp 1.859.228/SP – Rel. Min. Nancy Andrighi (alienação parental – inversão de guarda não é automática)

Court: Superior Tribunal de Justiça (STJ – Brazilian Superior Court of Justice), Terceira Turma (Third Panel) Case reference: Recurso Especial nº 1.859.228/SP Relatora (Reporting Justice): Ministra Nancy Andrighi Date of judgment / publication: Reported by the practitioner press in early 2024 as the most-cited recent illustration of the Terceira Turma's "no-automaticity" doctrine; the exact data do julgamento and DJe date are not publicly confirmed in the secondary sources used here and would need to be verified on the STJ jurisprudence portal (scon.stj.jus.br) directly Lower courts: Brazilian first-instance vara de família and Tribunal de Justiça do Estado de São Paulo (TJSP); state-court file numbers are not publicly confirmed Statute interpreted: Lei nº 12.318, de 26 de agosto de 2010 (Brazilian Parental Alienation Law), in particular art. 2º (definition of alienação parental), art. 5º (perícia psicológica ou biopsicossocial), and art. 6º (catalogue of remedies, including inversion of custody under art. 6º, V) Reported at / primary sources: Conjur – "Saiba o que o STJ tem decidido sobre perícia e alteração de guarda em casos de alienação parental", 2 January 2026 | Legale Educacional – "Alienação Parental: Critérios do STJ na Alteração de Guarda" | Conjur – "Interesse da criança tem norteado STJ em casos de alienação parental", 10 June 2019 | STJ – "Protocolo para escuta de menor em ações de alienação parental", 19 September 2024

Parties

  • Recorrente / recorrido: anonymised in line with Brazilian privacy convention for family-court matters; the parents' names are not publicly confirmed in the public commentary used here.
  • Minor child: the resolution turned in part on the child's emotional stability in the existing residential placement; the child's age at the time of decision is not publicly confirmed in the available secondary sources.
  • Panel composition (Terceira Turma): Ministra Nancy Andrighi (Relatora); the other Ministros sitting on the day are not publicly confirmed in the public commentary used here and would need to be confirmed from the acórdão itself.

Background: the Brazilian statutory framework

Brazil has, among the major legal systems, the most explicit statutory PA regime. Lei nº 12.318/2010 defines alienação parental in art. 2º as interference promoted or induced by one parent (or grandparent, or anyone with the child in their authority or care) that prejudices the formation or maintenance of bonds with the other parent. Art. 2º, parágrafo único, lists exemplificative behaviours (denigration campaigns, obstruction of contact, false reporting of abuse, change of residence to defeat contact, etc.).

Where alienating conduct is identified, art. 6º of the law gives the family-court judge a graduated catalogue of remedies, from a simple warning (advertência) up to suspension of parental authority. Inversion of custody (alteração da guarda) is one of those remedies (art. 6º, V) – but it is by no means the first or default response.

That statutory architecture has become contested in Brazil since the early 2020s. A reform attempt – Projeto de Lei nº 1.372/2023 (originally PL 1.372/2022) – seeks integral revocation of Lei 12.318/2010, on the argument that the law has been misused to discount domestic-violence and child-sexual-abuse allegations made by mothers (Câmara dos Deputados – "Revogação da Lei de Alienação Parental tem apoio de parlamentares de espectros políticos opostos"; Agência Brasil – "CCJ da Câmara aprova fim da lei de alienação parental", 3 December 2025; Câmara dos Deputados – "Comissão de Constituição e Justiça aprova revogação da lei que trata da alienação parental"). The CCJ of the Chamber of Deputies approved the revocation by 37 to 28 votes on 3 December 2025.

It is in that controverted statutory landscape that the Terceira Turma of the STJ has spent 2020-2025 building a "no-automaticity" doctrine through cases of which REsp 1.859.228/SP is the most-cited recent illustration.

Key facts

  • The family-court proceedings involved a dispute between the parents in which the alienação parental framework of Lei 12.318/2010 was invoked.
  • Court-ordered psychosocial reports (relatórios psicossociais) indicated that the child was emotionally stable (emocionalmente estável) in the residential environment in which the child was living (Conjur, 2 January 2026).
  • The lower-instance court was asked to apply the "alteração da guarda" remedy of art. 6º, V of Lei 12.318/2010 – inversion of custody – as a sanction for the alleged alienating conduct.
  • The matter was brought to the STJ on recurso especial by way of decision of the TJSP. The exact procedural movements at the trial and intermediate-appellate level are not publicly confirmed in the secondary sources surveyed.

Procedural posture

A recurso especial under art. 105, III of the Federal Constitution, decided by the Terceira Turma of the STJ. The Third Panel is the chamber with subject-matter jurisdiction over family-law special appeals.

The decision

The STJ refused to authorise the "alteração da guarda" remedy. Ministra Nancy Andrighi, writing for the Panel, held that abrupt changes in the family environment can produce profound and lasting psychological effects on the child, and must therefore be avoided whenever possible. Where the psychosocial reports indicated that the child was emotionally stable in the existing residential placement, the more severe statutory remedy (custody inversion under art. 6º, V of Lei 12.318/2010) was not appropriate (Conjur, 2 January 2026).

The ruling sits within and consolidates a wider STJ doctrine, summarised by the Conjur commentary as follows:

"A jurisprudência da corte é firme ao afastar qualquer automatismo entre a constatação da alienação e a inversão da guarda."

(in English: "The Court's jurisprudence is firm in rejecting any automaticity between the finding of alienation and the inversion of custody.")

(Conjur, 2 January 2026)

Three propositions are extracted from the decision and from the broader Terceira Turma line by Brazilian commentators:

  1. No automaticity. A finding of alienação parental under art. 2º of Lei 12.318/2010 does not, by itself, trigger inversion of custody under art. 6º, V. The statutory catalogue is graduated and the judge must select the least-intrusive remedy that achieves the child's best interest (Conjur, 2 January 2026; Legale Educacional).
  2. The child's existing stability is a load-bearing factor. Where psychosocial reports show that the child is emotionally stable in the current residence, custody inversion is presumptively inappropriate; the inversion remedy is "extreme" and admissible only on technically demonstrated, unequivocal evidence that the existing environment is concretely harming the child's physical or emotional development (Conjur, 2 January 2026).
  3. Milder measures must be tried first. The Court favours expansion of visitation (regulamentação ampliada) for the non-resident parent and the stipulation of a fine (multa) – both of which are explicit options in art. 6º of the law – over the disruptive remedy of inverting the child's residence (Conjur, 2 January 2026).

The decision is one in a series. The Terceira Turma has elaborated the same proposition through:

  • REsp nº 1.654.111/DF, Rel. Min. Ricardo Villas Bôas Cueva, Terceira Turma, DJe 29/08/2017 – an earlier formulation of the "shared-custody-as-default" line, in which the alleged alienação parental did not, in itself, justify variation of the existing guard regime where preclusion (preclusão) had set in (Jusbrasil – article on STJ acórdãos on alienação parental).
  • REsp nº 2.108.750/GO, Terceira Turma, 2024 – an annulment of procedural acts in a case involving reciprocal accusations of alienação parental and abuso sexual, on the ground that no inversion of guard could be ordered without full evidentiary investigation (Conjur, 2 January 2026). See separate case-study file.

Who else was involved

  • Tribunal de Justiça do Estado de São Paulo (TJSP) – the intermediate-appellate court whose decision was appealed by recurso especial.
  • Ministério Público estadual – under art. 5º of Lei 12.318/2010 the Public Prosecutor's Office is necessarily heard before perícia psicológica or biopsicossocial is determined.
  • Conselho Nacional de Justiça (CNJ) – on 19 September 2024, on the proposal of a working group coordinated by Ministra Nancy Andrighi, the CNJ approved the Protocolo para o Depoimento Especial de Crianças e Adolescentes nas Ações de Família em que se discuta Alienação Parental (Recomendação CNJ nº 157/2024, of 3 October 2024 – Recomendação CNJ nº 157/2024 – PDF; STJ news item). The Protocol expressly aims to align the hearing of children in alienação parental proceedings with the methodology of depoimento especial in cases of violence against children.
  • Instituto Brasileiro de Direito de Família (IBDFAM) – the leading practitioner academy in the field; its commentary on Ministra Nancy Andrighi's family-law jurisprudence is collected at IBDFAM – Nancy Andrighi destaca decisões inéditas.

Reactions and commentary

  • Conjur (Consultor Jurídico) – the leading Brazilian legal-news portal – treats REsp 1.859.228/SP, together with REsp 2.108.750/GO, as the operative statement of the Terceira Turma's contemporary doctrine: "a jurisprudência da corte é firme ao afastar qualquer automatismo entre a constatação da alienação e a inversão da guarda" (Conjur, 2 January 2026).
  • Legale Educacional treats the doctrine as defining the "critérios do STJ na alteração de guarda" – the STJ's criteria for the custody-inversion remedy – under Lei 12.318/2010, with the inversion remedy reserved for situations in which milder measures have already proved ineffective (Legale Educacional).
  • The Tribunal de Justiça do Distrito Federal e dos Territórios (TJDFT) has incorporated the no-automaticity proposition into its public Jurisprudência em Temas compendium (TJDFT – Alienação Parental: medidas judiciais).
  • The Conselho Nacional de Direitos Humanos, the Conselho Nacional de Saúde and the UN have separately recommended revocation of Lei 12.318/2010 (Câmara dos Deputados – "Revogação da Lei de Alienação Parental tem apoio"). The STJ doctrine of which REsp 1.859.228/SP is part addresses the same concerns at judicial-application level rather than at statutory level.

Why this case matters

Brazil has the world's most explicit statutory PA regime. Lei 12.318/2010 not only names the concept but provides a graduated catalogue of judicial responses up to and including loss of parental authority. In a system where the legislative text is so detailed, the meaningful question becomes how the Supreme Court interprets the statute in application.

REsp 1.859.228/SP is the cleanest recent illustration of the Terceira Turma's answer: the statutory finding of alienação parental does not authorise the most severe remedy by itself. The judicial response must be graduated, proportionate, and grounded in concrete evidence that the child's existing environment is harming the child's development.

For comparative purposes three features stand out:

  1. The statutory architecture preserves the "alienação" concept while disciplining its remedies. Brazil has neither followed the Italian Supreme Court in calling PA "pseudo-scientific" (Cass. 9691/2022) nor followed the German Constitutional Court's rights-based caution about Eltern-Kind-Entfremdung coercive measures (BVerfG 1 BvR 1076/23). Instead, the STJ has kept the statutory category in service while building a judge-made doctrine of remedy-proportionality around it.
  2. The child's voice has been brought into the statutory framework procedurally. Under Ministra Nancy Andrighi's leadership of the CNJ working group, a Protocolo de Depoimento Especial for alienação parental proceedings was approved in 2024 (Recomendação CNJ nº 157/2024). That development is procedurally close to the Italian audizione del minore doctrine of Cass. 9691/2022 and the English insistence in Re A (Children) (Parental Alienation) [2019] EWFC B56 that the court speak to the child.
  3. The "no-automaticity" doctrine is a constructive middle path. Where the Italian and German supreme courts have moved against PA framing because of its misuse, and where Brazilian civil-society organisations are pushing for full statutory revocation, the Terceira Turma of the STJ has staked out a third position: keep the statute, but require evidentiary, graduated, child-centred application of it. REsp 1.859.228/SP is the most cited illustration of that position in 2024.

For the parental-alienation discourse, REsp 1.859.228/SP is important because it shows what mature jurisprudence under a detailed PA statute looks like. The court does not deny that one parent can damage a child's relationship with the other; it requires proof of concrete harm, it requires graduated remedies, and it refuses to allow a statutory label to substitute for judicial reasoning about the child's actual interests.

For honest PA advocacy, the case is also instructive: the most explicit PA legislation in the world is, in its highest-court interpretation, applied with restraint. The legitimate concerns of the proponents of statutory revocation – misuse against mothers reporting violence – are being addressed in part by the Court's insistence that the more severe remedies cannot be triggered by the label alone.

Sources