When it will not have agreement, it will be attributed who to disclose better conditions to exert it, in the terms foreseen for articles 1,583 and 1.584. E, finally, in case that if it verifies that the children do not have to remain with none of the parts, the guard is granted the third person. The absence of express legal forecast how much to the institute of the shared guard it did not constitute impeditive factor so that she was accepted for the doctrine and it had application, a time that already came being sufragada for the doctrine and for judged of some courts. The guard shared for the children of separate parents or that they had never coexisted was instituted express by the Law n 11,698, of 13 of June of 2008, that he modified art. 1.583 and 1,584 of the Civil Code.
The option for the subject appeared of the interest for the shared guard and its insertion as legal modality in the actions at law of separation, analyzing the difficulties of efetivao of the guard shared without losing of sight the intention of the legislator of whom it must be measured that better she takes care of to the interests of the minor. The shared guard does not have to be seen as instrument to promote the consolidation of the equality between the sexos, already recognized for the Constitution, therefore both are right basic and as such must coexist pacifically. It occurs that, in the practical one, the application of this model for the legal system comes being object of critical and conflicts incited in such a way in the doctrine how much for jurisprudence of the Courts when the hypothesis involves the contentious separation between couples. Importance social of subject accumulates of stocks challenge to provide to parents that has if separate – in virtue of not to be more possible the convivncia in common or that they had never coexisted together -, still thus, to share the guard of its son, by means of division of responsibilities and decisions in set, so that it is kept the parental bond and the balance, that must permear in the relations between parents and children.