Domestic violence, shared custody, and the effectiveness of Law No. 14.713/2023 in the TJTO

Abstract

This article analyzes the effectiveness of Law No. 14,713/2023 within the Court of Justice of the State of Tocantins (TJTO), investigating how the new evidentiary filter preventing shared custody has been applied in contexts of domestic and family violence. The research problem seeks to determine to what extent the jurisdictional performance of the TJTO has ensured the protection of the best interests of children and adolescents in situations involving the probability of physical, psychological, or vicarious violence. The central hypothesis argues that, although the legislation imposes a duty of active investigation upon judges and prioritizes the preventive protection of vulnerable individuals, practical resistance still persists due to rigid evidentiary formalism and the artificial dissociation between conjugality and parenthood. The general objective is to assess the impact of Law No. 14,713/2023 on the jurisprudence of Tocantins, examining the transition from the paradigm of mandatory shared custody to the prioritization of the physical and psychological safety and integrity of those involved. Methodologically, the research adopts a qualitative approach of a documentary and bibliographic nature, guided by the hypothetical- deductive method, using as a methodological strategy the jurisprudential case study of Interlocutory Appeal No. 0008514-26.2024.8.27.2700, selected for representing a recent paradigm in the application of Law No. 14,713/2023 by the TJTO. Additionally, doctrinal analysis and statistical data on domestic violence in the State of Tocantins are used to contextualize the investigated phenomenon. The results indicate that, despite the normative advances promoted by the new legislation, the full effectiveness of integral protection still faces interpretative obstacles regarding the assessment of the “probability of risk,” highlighting the need for the effective incorporation of a gender perspective in family court decisions. It is concluded that sole custody may assume the nature of an indispensable protective measure to interrupt cycles of institutional and family violence when minimum elements of risk to the child or vulnerable parent are identified.