BETWEEN THE NORM AND REAL LIFE: THE NATIONAL COUNCIL OF JUSTICE’S PROTOCOLS FOR GENDER- AND RACE-SENSITIVE ADJUDICATION, INTERSECTIONALITY, AND THE PERSISTENCE OF DOMESTIC VIOLENCE IN FAMILY LAW

Abstract

This chapter examines how the gender and race-sensitive adjudication protocols—instituted by the National Council of Justice via Resolutions 492 and 598, respectively—provide the Brazilian judiciary with a methodological toolkit to break the historical fragmentation between the conjugal and parental roles. This fragmentation had allowed family law to operate, albeit unintentionally, as a mechanism perpetuating domestic violence. It is demonstrated that the intersectional application of these protocols, combined with a critical review of traditional legal education in law schools, is essential to prevent domestic violence situations from being reproduced through judicial proceedings. The text outlines the normative and regulatory foundations of these instruments, their grounding in international human rights commitments, and relevant higher court jurisprudence—particularly that of the Superior Court of Justice regarding joint custody. It specifically examines Law No. 14.713/2023 as a legislative advancement recognizing the risk of violence as a bar to joint custody, and addresses the phenomenon known as "vicarious violence," which describes the instrumentalization of children as a means for an abuser to maintain control over the victim. The chapter concludes that Brazilian legal education, starting at the undergraduate level, must internalize the protocol methodology not merely as a bureaucratic requirement, but as an ethical commitment to the dignity of those who turn to the judiciary to end cycles of violence that life alone could not interrupt.