New Civil Code

The author still reflects that, traditionally, the guard was treated as a subjective institute, conferred to the one of the genitors, fitting the other genitor right the visits and that this dismisses of such institute its 15 primordial function to guarantee optimum interest of the child or the adolescent. Still for Tepedino (2004), the concession of the guard to the one of the spouses on the basis of conjugal former life, before the separation, establishing itself a culprit and an innocent, also does not take care of the beginning of optimum interest of the child. In accordance with Cahali (2005), when of the separation of spouses, the New Civil Code turns that the former-spouses must decide for common agreement on the guard of the children, establishing themselves the detainer of the guard in fact and the regimen of visits. However, in the cases where this is not possible, it must the judge, aiming at the good of the children, to decide with who is the guard, as well as the respective regulation of visits. Thus, ' ' in the estimated one of that the genitors did not have fond of a common denominator respect, the judge would simply homologate the personal separation of the spouses, applying to the children the solution that better takes care of to the interests of them grifo ours ' ' (CAHALI, 2005 P. 234). In last case, in accordance with Art. 1,584 of the new Brazilian Civil Code, 5, not being able the children to remain under the guard of its genitors, therefore this would be pernicious, them must have its guard delivers to one third, of preference that has some degree of kindred with (s) the child (s), beyond the relations of affinity and affectivity. Being under the guard of one or another genitor, or still under the guard of third, one understands that the regulation of sights is a right that attends the genitors in such a way, how much the children, a time who this constitutes part of the duty of the genitors, being together or not, to watch over for well-being and education of its children, being taken care of optimum interest of these (CAHALI, 2005).