A utilização de provas ilícitas e ilegítimas em casos de alienação parental

Abstract

This course conclusion work had as scope to analyze the use of illicit and illegitimate evidences in processes in which there are allegations of parental alienation. Indeed, it had searched to find out what is the relationship between the use of this evidence in the processes with the principles of the prohibition of illegal evidence, in the best interests of the child and of the absolute priority. Considering the analysis of the proportionality and the weighting, this research found out to investigate the possibility of the magistrate uses this evidence, based on the fact that this is a difficult reality, as parental alienation occurs in the intimacy of the home, where there are principles that regulates and protects the privacy. In view of these facts, we come across with a conflict between constitutional principles, that do not have a hierarchy and, therefore, we must consider both. Faced with the problem, it is necessary to analyze the weight of these principles and what is the essential core of fundamental rights, in order to decide which is the best decision for each specific case. The family processes seek to protect the affection and dignity of the human person and, for that, one of the principles that has the greatest value is the best interest of the child. This principle establishes the need to prioritize the interests of the child in relation to their parents and, in accordance with the principle of absolute priority, they aim to protect and prioritize the rights of children and adolescents who are subjects of rights in formation. By applying proportionality these principles, we can see that the protection of children has greater weight to the Federal Constitution and aims to protect the essential core of fundamental rights and the physical and moral integrity of the minor. Thus, we can understand that in these cases of hard proof, the magistrate should consider about the use of an illegal evidence, using it in a way to protect the rights of children and adolescents. [resumo fornecido pelo autor]