Power of parents in the administration of goods of the minor children is not absolute

March 28, 2018

The power of parents in relation to the enjoyment and administration of the goods of the minor children is not absolute. In exceptional character, it is possible that the son hopefuily action of accountability, substantiated in the suspicion of abuse of law by the parents. The understanding was expressed by the third class of the Superior Court of Justice when judging an appeal that originated in a child's request for his adopted mother to account for the period in which he administered the pension received since his father's death until he reached Ma Ioridade. According to the son, even the benefit having been deposited in the current account for five years, the mother left him abandoned and he received no value to fund food, clothing and other necessities, a fact that would set up abuse of law. The judgment of the first degree extinguished the process without resolution of merit, by the legal impossibility of the request, since it was not possible to ask for accountability to those who do not have the duty to groomed them. The Court of Justice of Minas Gerais, however, has revoked the sentence to determine the regular processing of the deed. According to minister Marcus Aurelius Bellizze, rapporteur for the appeal in the STJ, the father and the mother, "while in the exercise of family power, are usufructuaries of the goods of the children (legal enjoyment), and have the administration of the goods of the minor children under their authority", in Terms of article 1,689, subparagraphs I and II, of the Civil code. "For this reason, as a rule, there is no duty to account for the values received by the parents in the name of the child, during the exercise of family power, because there is a presumption that the monies received have been used for the maintenance of the Community Family, covering the cost of food, health, clothing, education, leisure, among others, "said Bellizze. However, the Minister clarified that the fact that the parents are usufructuaries and administrators of the goods of the minor children "does not give them total freedom to use, as they wish, the patrimony of their children, which, strictly, does not belong to them". As the power of the parents is not absolute, the rapporteur pointed out, "it must be allowed, in exceptional character, the filing of action of accountability by the son, whenever the cause of request is founded on the suspicion of abuse of law in the exercise of that power", because " infeasible, of plan, the filing of action of accountability in this type of situation would eventually curtailing the right of the son to question judicially any abuse of the law of his parents ". Bellizze explained that the action of accountability has two phases: in the first, the author seeks the condemnation of the defendant to the obligation to account; On Monday, the accounts will be judged. As the minister said, it will be up to the son to prove, in the first phase, the abuse of the law, demonstrating that the mother has failed to pass on to him the minimum necessary to ensure the fulfillment of his needs. The Minister clarified that, if there is proof, the judge will judge the demand in order to compel the mother to account for the values received. If the child does not prove the abuse of law, the action should be judged unfounded, departing from the obligation to account. With information from the press office of the STJ.

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