Child Custody Between Brazil and Portugal

Leaving Brazil

CNJ Resolution 131/2011 standardized the application of Arts. 83 to 85 of the Statute of Children and Adolescents (Estatuto da Criança e do Adolescente). For Brazilian children and adolescents residing in Brazil, court authorization is not required when they travel abroad (Art. 1):

• with both parents;
• with one of the parents, provided there is authorization from the other, with a notarized signature;
• unaccompanied or with an adult with full legal capacity designated by the parents, with authorization from both, with notarized signatures.

The authorization may be made by public deed (Art. 4) or before a Brazilian consular authority (Art. 8, § 2). It must state its period of validity; if silent, it is valid for two years (Art. 10). It is presented in two original copies, one of which is retained by the Federal Police (Art. 8). There is also the Electronic Travel Authorization (Autorização Eletrônica de Viagem, AEV), issued through e-Notariado (Brazil's electronic notarial platform) for children and adolescents up to age 16 traveling without one or both parents (Art. 444 of the CNJ National Code of Rules).

Brazilian children who reside abroad may return to their country of residence with one of the parents without written authorization, provided that residence is proven by a consular certificate issued less than two years earlier (Art. 2). Without court authorization, no Brazilian child may leave the country with a foreign national residing abroad, unless that person is one of the parents (Art. 3).

Leaving Portugal

According to the gov.pt portal, an authorization for a minor to leave the country is only required when the child travels without any person holding parental responsibilities. If the child travels with only one of the parents and parental responsibilities are held jointly, no authorization is required, provided that the other parent does not object. The portal cites as its basis Law 23/2007 (Lei), Article 23 of Decree-Law 83/2000 (Decreto-Lei) and Article 20 of the Schengen Borders Code, and recommends confirming the requirements with the carrier.

A travel authorization does not authorize a change of residence. CNJ Resolution 131/2011 itself provides that, unless expressly stated, international travel authorizations do not constitute authorization to establish permanent residence abroad (Art. 11).

In Brazil

The Brazilian Civil Code (Código Civil) gives both parents, whatever their marital situation, the power to grant or refuse consent for their children to travel abroad and to move their permanent residence to another municipality (Art. 1,634, IV and V). If they disagree, either parent may apply to the court (Art. 1,631, sole paragraph). In shared custody, the children's base city of residence is the one that most closely meets their interests (Art. 1,583, § 3), and an unauthorized change to a custody provision may reduce the parent's prerogatives (Art. 1,584, § 4).

In Portugal

After separation, parental responsibilities concerning matters of particular importance are exercised jointly by both parents, except in cases of manifest urgency (Article 1906(1) of the Portuguese Civil Code (Código Civil)). The child's residence is determined by the court, in accordance with the child's interests (paragraph 5). If the parents cannot agree on a matter of particular importance, either of them may ask the court to resolve the dispute (Article 44 of the General Regime of Civil Guardianship Proceedings (Regime Geral do Processo Tutelar Cível)); when circumstances change, a new arrangement may be requested (Article 42).

In practice

Before a permanent move, the safest course is to obtain the other parent's written agreement, preferably court-approved, or a court decision authorizing the move and adjusting the contact arrangements. Taking or keeping the child in another country without that consent may give rise to a return request under the 1980 Hague Convention.

Brazil: sole or shared custody

Custody may be sole or shared (Art. 1,583 of the Civil Code). In shared custody, time with the children must be divided in a balanced way, according to the actual circumstances and the children's interests (§ 2). Absent an agreement and with both parents fit, shared custody applies, unless one of the parents declares that they do not want it or there is evidence showing a likely risk of domestic or family violence (Art. 1,584, § 2, as worded by Law 14,713/2023 (Lei)). Divorce does not change the relationship between parents and children, except as regards living arrangements (Art. 1,632).

Portugal: exercise of parental responsibilities

The Portuguese Civil Code distinguishes matters of particular importance, exercised jointly, from acts of everyday life, which fall to the parent with whom the child habitually or temporarily resides (Article 1906(1) and (3)). The court may assign matters of particular importance to one parent only, by reasoned decision, when joint exercise is contrary to the child's interests (paragraph 2), and may order alternating residence, even without agreement, when it serves the child's paramount interests (paragraph 6).

The proceedings follow the General Regime of Civil Guardianship Proceedings (Law 141/2015 (Lei)), which favors consensus and mediation and ensures that a child capable of understanding is heard, according to age and maturity (Arts. 4 and 5; Article 1906(9) of the Civil Code). In situations of domestic violence, the Public Prosecutor's Office (Ministério Público) requests, within 48 hours, the urgent regulation or modification of parental responsibilities (Article 44-A).

When the child resides abroad and the Portuguese court has international jurisdiction, the action is brought in the court of the residence of the applicant or the respondent (Article 9(7) of the RGPTC).

The Convention on the Civil Aspects of International Child Abduction (in Portugal, “rapto internacional”) has been in force in Brazil since January 1, 2000 (Decree 3,413/2000) and in Portugal since December 1, 1983. Because Brazil acceded to the Convention, it only applies with the States that have accepted the accession: Portugal accepted it on October 12, 2001, and the Convention has been in force between the two countries since January 1, 2002 (HCCH acceptances table).

• Who it protects: children habitually resident in a Contracting State immediately before the removal or retention, until they turn 16 (Art. 4).
• What is wrongful: a removal or retention that breaches rights of custody actually exercised under the law of the country of habitual residence (Art. 3). Rights of custody include the right to determine the child's place of residence (Art. 5).
• The 1-year period: if proceedings are started less than one year after the removal or retention, the authority must order the child's return forthwith. After that period, return is still ordered, unless it is shown that the child is now settled in the new environment (Art. 12).
• Return does not decide custody: a decision on return does not affect the merits of any custody issue (Art. 19), which continues to be decided in the country of habitual residence.

Central authorities

• In Brazil: the Federal Central Administrative Authority (ACAF), within the Ministry of Justice and Public Security. In requests from abroad where the parents do not agree, ACAF refers the case to the Office of the Attorney General of the Union (Advocacia-Geral da União), which files the action in the Federal Courts. Proceedings follow CNJ Resolution 449/2022.
• In Portugal: the Directorate-General for the Administration of Justice (DGAJ), which preferably receives requests by email. According to DGAJ, in Portugal it is not mandatory to appoint a lawyer for these requests.

Return is not automatic. Under Art. 13 of the Convention, the authority is not bound to order it if the person who opposes return establishes:

• that the other parent was not actually exercising custody, or had consented to or subsequently acquiesced in the removal or retention (subparagraph a);
• that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (subparagraph b).

Return may also be refused if the child objects and has attained an age and degree of maturity at which it is appropriate to take account of their views (Art. 13), or if it would be incompatible with the fundamental principles of the requested State relating to human rights (Art. 20).

ADIs 4,245 and 7,686

On August 27, 2025, the Brazilian Supreme Federal Court (STF) unanimously concluded the judgment of Direct Actions of Unconstitutionality (ADIs) 4,245 and 7,686 (official STF news release). The holding has three points:

• the 1980 Hague Convention is compatible with the Constitution and has supralegal status in Brazil;
• its application requires structural and procedural measures for the swift and effective handling of return actions;
• the grave risk exception in Art. 13(1)(b) must be interpreted in light of the best interests of the child and from a gender perspective, so as to allow its application when there is objective and concrete evidence of domestic violence, even if the child is not a direct victim.

The measures ordered include concentrating these actions in specific federal trial courts and appellate panels, priority handling, a protocol for consular assistance to women and children who are victims of domestic violence, and a working group at the CNJ so that the final decision on return is made within one year.

This ruling is binding on Brazilian courts. If the return request is heard in Portugal, the exception will be assessed by the Portuguese courts, under the Convention and the law applicable in Portugal.

The Hague Convention of October 19, 1996, on parental responsibility and measures for the protection of children, deals with jurisdiction, applicable law and recognition of custody decisions. Portugal has been a party since August 1, 2011, but Brazil is not listed as a party in the official HCCH status table. It therefore does not apply between the two countries.

Likewise, Regulation (EU) 2019/1111, which Portugal applies to decisions from other European Union Member States, does not cover Brazilian decisions. Between Brazil and Portugal, recognition of custody decisions follows each country's domestic law, and the return of children follows the 1980 Convention.

Portuguese decision with effect in Brazil

A foreign decision only takes effect in Brazil after recognition by the Superior Court of Justice (STJ), unless otherwise provided by law or treaty (Art. 961 of the Brazilian Code of Civil Procedure (CPC)). An uncontested divorce involving custody, support or partition of property (qualified divorce) requires prior recognition (Art. 464, § 3, of the CNJ National Code of Rules). See the page on STJ recognition of foreign judgments.

Brazilian decision with effect in Portugal

Absent an applicable treaty or regulation, a foreign decision on private rights only takes effect in Portugal after it has been reviewed and confirmed by the Court of Appeal (Tribunal da Relação) (Arts. 978 and 979 of the Portuguese Code of Civil Procedure). This includes decisions on custody and on the regulation of parental responsibilities. See the page on recognition (review) of foreign judgments.

Custody decisions and return requests

A custody decision obtained in the country to which the child was taken is not, in itself, sufficient grounds to refuse a return requested under the 1980 Convention, although its reasons may be taken into account (Art. 17). For that reason, obtaining custody “on the other side” after an unauthorized move does not resolve the situation.

Custody is often handled together with divorce and with international child and spousal support.

With offices in São Paulo and in Albufeira, Sene & Araújo handles custody and parental responsibility matters involving Brazil and Portugal, with attention to the sensitivity of each family situation.

1. Initial conversation and review: where the child resides, what decisions or agreements already exist, who has custody and what steps are intended.
2. Prevention: drafting travel authorizations and agreements on residence, contact and vacations, with court approval when necessary.
3. Custody and parental responsibility proceedings in Brazil and in Portugal, including applications for court authorization to move to another country.
4. 1980 Hague Convention: guidance for those requesting return and for those opposing it, and coordination with the central authorities and with the other party's lawyers.
5. Effect of decisions: STJ recognition of Portuguese decisions and recognition (review) in Portugal of Brazilian decisions.

In situations of domestic violence, the priority is the safety of the mother or father and of the child. In Brazil, Ligue 180, run by the Ministry of Women, provides guidance and forwards reports; in case of immediate danger, contact the police authorities of the country where you are.