Shared custody and parental alienation: from regulatory recognition to evidentiary gap

Abstract

Law No. 31590 established joint custody in Peru as the preferred option in cases of parental separation, on the premise that shared responsibility reduces the dynamics that foster parental alienation. However, neither this law nor its equivalents in Brazil and Colombia have resolved the fundamental evidentiary problem: how to distinguish, within a custody proceeding, a legitimate allegation of parental alienation from its instrumental use to discredit allegations of domestic violence. The objective of this study was to analyze, through a systematic review using the PRISMA methodology, whether joint custody effectively functions as a preventive mechanism against parental alienation in the comparative law of Peru, Brazil, and Colombia. A total of 33 sources were reviewed, selected from 172 documents identified in Scopus, SciELO, Dialnet, and institutional repositories: 15 research articles published in the last five years in indexed journals, 9 laws and treaties, and 9 pieces of case law and protocols from the three countries. The results show that, although Brazil has a law that expressly criminalizes parental alienation and Colombia has challenged its scientific validity in court, no evidence of a differentiated evidentiary protocol was found in the sources reviewed. It is concluded that shared custody is a necessary but insufficient preventive measure, and a protocol is proposed that combines interdisciplinary psychological evaluation, a court hearing with the child, and cross-checking of records of domestic violence.