The father won't consent: can I move abroad with my child?

Can I take my child to live abroad without the father's consent?

You cannot, and the rule applies equally to the mother and to the father. Under the Civil Code, both parents, whatever their marital situation, must consent to the child's travel abroad. Both must also consent to a permanent change of residence to another municipality (art. 1.634, IV and V). Rocha Advogados, based in Goiânia, Brazil, assists parents who want to move with their child and parents who were caught off guard by a move.

Sole custody does not change this answer. The parent with custody decides the child's routine, but the other parent keeps parental authority (poder familiar). Resolution 131/2011 of the National Council of Justice (CNJ) only waives the consent of a parent whose parental authority was suspended or removed (art. 6). That situation is proven by the annotated birth certificate.

Does a notarised travel authorisation cover the move?

It does not. The Child and Adolescent Statute (Estatuto da Criança e do Adolescente, ECA) allows travel abroad with one parent when the other gives express authorisation. That authorisation is a document with a notarised signature (Law 8.069/1990, art. 84, II). CNJ Resolution 131/2011 states that it does not allow permanent residence abroad unless the document says so (art. 11).

The same resolution says that an authorisation without a stated term is valid for two years (art. 10). Many parents sign an authorisation with the holidays in mind and later find their child enrolled in a school abroad. A parent who agrees to the move should sign a specific document, stating the country, the city and the contact plan.

The passport follows the same logic. Decree 5.978/2006 forbids issuing a passport to anyone under 18 without the express authorisation of both parents (art. 27). When the parents disagree, the passport requires a Brazilian court decision or a legalised foreign one (art. 27, sole paragraph).

How do I take my child to live abroad when the father does not agree?

The way forward is to ask the judge for the authorisation the other parent refused. The Civil Code allows either parent to go to court when they disagree on the exercise of parental authority (art. 1.631, sole paragraph). The action asks the court to supply the consent (suprimento judicial do consentimento) for the move and the passport. It usually also settles custody and contact.

The case is heard by a Family Court, as a rule where the parent who lives with the child is domiciled (Law 8.069/1990, art. 147, I). The Code of Civil Procedure requires the judge to seek an agreed solution first, through mediation (art. 694). When there is a fixed date, such as a job start or the school year, an urgent interim order can be requested (Code of Civil Procedure, art. 300).

What does the judge consider in a request to move abroad?

The judge's criterion is the child's best interests. Under the Civil Code, in shared custody the child's home base is the city that best serves the children's interests (art. 1.583, § 3). The judge may rely on an assessment by an interdisciplinary team (Civil Code, art. 1.584, § 3).

In the requests Rocha Advogados handles, judges usually examine the reason for the move, such as a job, studies or a family support network. They also look at school, healthcare, housing, language, immigration status and the child's age. What weighs most is the bond with the parent who stays in Brazil.

That is why the request needs a concrete contact plan. The plan sets the holidays in Brazil, who pays for the flights and how often video calls take place. On 6 December 2022, the Third Panel of the Superior Court of Justice (STJ) ruled on a case like this (Case Law Bulletin 762). It reinstated a judgment that authorised a child to move to the Netherlands with her mother.

In that case, the plan provided for the child to come to Brazil every holiday until age 18, paid for by the mother. It also provided for unrestricted video calls. The ruling does not ensure the same outcome in another case, because each family is judged on its own facts.

Is shared custody possible with a father living abroad?

Yes. When fit parents do not agree, the Civil Code requires shared custody (art. 1.584, § 2). The exceptions are a parent's declared refusal and a risk of domestic violence. Shared custody means joint responsibility for the decisions in the child's life (Civil Code, art. 1.583, § 1).

The STJ recorded in Case Law Bulletin 762 that the home base of a child under shared custody can be moved abroad. The court noted that it had already accepted this arrangement with parents in different cities, states or countries. School, health and travel are still decided by both parents, at a distance.

What happens if I leave Brazil with my child without authorisation?

The first obstacle is boarding. The Federal Police check the parents' authorisation when the child leaves the country and keep a copy (CNJ Resolution 131/2011, art. 8). Whoever manages to leave, for example with a holiday authorisation, then faces the 1980 Hague Convention, enacted in Brazil by Decree 3.413/2000.

The Hague Convention treats as wrongful a removal or retention that breaches one parent's rights of custody (art. 3). Rights of custody include deciding the child's place of residence (art. 5). Since in Brazil that decision belongs to both parents, a move made by one alone usually fits the definition.

If the request starts less than 1 year after the move, the authority in the other country must order the child's immediate return (Hague Convention, art. 12). After 1 year, return is still the rule, unless it is proven that the child has settled into the new environment. The exceptions include the other parent's consent, a grave risk to the child and the objection of a sufficiently mature child (art. 13).

In Brazil, Law 12.318/2010 treats as parental alienation a move to a distant place, without justification, to hinder contact (art. 2, sole paragraph, VII). The judge may issue a warning, impose a fine, extend the other parent's contact and even reverse custody (art. 6). An unauthorised change to custody terms may also reduce the custodial parent's prerogatives (Civil Code, art. 1.584, § 4).

My ex took my child to another country and won't come back from the holidays: what do I do?

The parent left behind should act quickly, because the 1-year window in the Hague Convention favours return (art. 12). According to the Ministry of Justice and Public Security, keeping the child after the authorised holidays is also wrongful. The Convention protects children up to age 16 (art. 4).

The return request goes to the Federal Central Administrative Authority (Autoridade Central Administrativa Federal, ACAF), within the Ministry of Justice and Public Security. ACAF receives the form in Portuguese and in the language of the country where the child is. It then sends the request to the foreign central authority, may involve Interpol to locate the child and encourages an agreement.

In the reverse case, a child who lived abroad is brought to Brazil and kept here. The request reaches ACAF through the foreign central authority and, without agreement, the Office of the Attorney General (Advocacia-Geral da União, AGU) files the return action in the Federal Courts. The parent living abroad may hire their own lawyer in Brazil to follow the case.

Step by step to ask the court for permission to move abroad with your child

1. Gather proof of the reason for the move: job offer, course enrolment, visa and address in the new country.
2. Identify the child's school, health plan and housing abroad, with documents.
3. Draw up a written contact plan, with holidays in Brazil, flight costs and a video call routine.
4. Propose an agreement on those terms to the other parent, in writing, and keep the reply or the silence.
5. Without agreement, ask the Family Court to supply consent for the move and the passport.
6. Take part in mediation and in the psychosocial assessment, if the judge orders them.
7. With the decision, issue the passport and board carrying a copy of the court decision.

Which mistakes does Rocha Advogados see repeated?

In the cases Rocha Advogados handles, the first mistake is using a holiday authorisation for a permanent move. The second is asking for court authorisation a few days before the trip, with no contact plan. The third is cutting the child's contact with the other parent after the move, which weighs against the moving parent in any custody review.

On the side of the parent left behind, the most common mistake is waiting months before acting, hoping the child will come back on their own. The other is signing a travel authorisation with no term, no destination and no clause stating that it does not authorise a move.

Frequently asked questions

International travel authorisation for a minor to emigrate: what can I do when the father won't sign?

The other parent asks the judge to supply the consent (Civil Code, art. 1.631, sole paragraph). The court decision replaces the missing signature, for the passport and for boarding. The judge decides based on the child's best interests and examines the contact plan.

Separated parents: can the mother move abroad with the child?

Yes, if the father agrees to the move in writing or if the judge authorises it. The STJ has accepted moving a child's home base abroad under shared custody (Case Law Bulletin 762). Each request depends on the family's facts.

I have sole custody. Do I still need the father's consent?

You do. Sole custody does not take away the other parent's power to consent to travel and to the move (Civil Code, art. 1.634, IV and V). Consent is only waived for a parent whose parental authority was suspended or removed (CNJ Resolution 131/2011, art. 6).

I live abroad and the father is in Brazil. Do I need to go to the consulate?

To authorise a trip, signing before a Brazilian consular officer replaces the notarised signature (CNJ Resolution 131/2011, art. 8, § 2). For a court action, the firm's power of attorney signed digitally is enough (Code of Civil Procedure, art. 105, § 1), with no consulate involved. Testimony can be given by video conference (Code of Civil Procedure, art. 385, § 3).

My ex took my child to another country for the holidays and won't come back. Do I lose my rights over time?

Time matters. If the request is made less than 1 year after the retention, the authority in the other country must order immediate return (Hague Convention, art. 12). After that, return may be refused if the child has already settled into the new environment.

How long does a request for court authorisation take?

It depends on agreement, on the psychosocial assessment and on the court's schedule. With agreement, approval is usually faster; without it, there is mediation, an assessment and a hearing. The estimated timeline for your case is given in writing before we start.

This content is for information only and does not replace advice on your specific case. No outcome is guaranteed, in line with Brazilian Bar Provision 205/2021.

Rocha Advogados, a law firm in Goiânia (GO), Brazil, serving Brazilians living abroad. Av. D, 419, 4º andar, Setor Marista. Lawyers in charge: Rafael Bispo da Rocha, OAB/GO 33.675, and Ivenise Uchôa de Almeida Rocha, OAB/GO 59.087. Online service for Brazilians in any country and in person in Goiânia.