Advogada esclarece dúvidas das mães na quarentena

Desde o início da pandemia do Covid 19, muito tem se falado sobre o isolamento e como enfrentar esse período, especialmente pelo lado emocional. Mas existem um série de questões práticas para famílias que têm crianças que não têm sido muito lembradas.

A seguir, a advogada Bruna Giannecchini, especializada em Direito de Família, Consumidor e Sucessões (Inventário), responde algumas dessas questões:

Descontos das escolas durante o isolamento:

“O plano de contingência pela pandemia de COVID-19 atingiu a todos, tanto os responsáveis financeiros, quanto as Instituições de ensino, não cabendo o ônus apenas à uma das partes. A revisão contratual é medida que se impõe para manter a boa-fé e o equilíbrio contratual, sob pena das medidas judiciais cabíveis. Dessa maneira, a votação da PL 2.052/2020 determinando as devidas porcentagens de descontos será a melhor opção para resolver o caso. Na ALERJ, em audiência pública realizada por videoconferência no dia 8de abril, foi discutido – e não votado – o referido projeto de lei cujo texto propõe a redução das mensalidades da rede privada de ensino durante a pandemia. A comissão se colocou à disposição para realizar as negociações. Já os pais que não tiverem a redução dos valores das escolas e se sentirem lesados, poderão requerer ao Judiciário que traga à relação igualdade e promova a revisão do contrato. Outro ponto importante é em relação à impossibilidade total de pagamento das escolas – que tenham dado descontos ou não: a matrícula referente ao ano de 2020 já está realizada e não poderá de forma unilateral, por parte da instituição de ensino, ser cancelada. Desta forma, o aluno não poderá ser impedido de cursar o presente ano letivo, muito embora as cobranças serão realizadas posteriormente e o responsável financeiro terá esse débito”.

Não pagamento de pensão alimentícia:

“Nós, que trabalhamos com Direito de Família, estamos pedindo calma e bom senso nesse momento. A abertura para o diálogo é fundamental nas relações de família nesse período excepcional da pandemia de COVID-19. Entender o motivo do não pagamento da pensão e quem sabe chegar a um denominador comum para o pensionamento é fundamental durante esse período. Certo é que, o responsável por pagar pensão alimentícia para o ex-cônjuge precisa ter consciência de que, a despeito de qualquer eventualidade que tenha sofrido, o menor precisa sobreviver e não pode ficar desassistido e sem os alimentos indispensáveis. Em caso de um verdadeiro impasse, o Judiciário, em regime de plantão, vai analisar a Ação de Execução de Alimentos. Para tal é necessário procurar um advogado ou a Defensoria Pública e exigir ao devedor de alimentos que pague a pensão em atraso, sob pena da decretação da prisão civil. Não se pode esquecer que, tal prisão – por conta da quarentena – provavelmente será  domiciliar e portanto perderá a sua força de coerção. Por isso, insisto que o diálogo é a melhor opção”.

Guarda compartilhada em tempos de pandemia:

“A guarda compartilhada em época de quarentena segue o mesmo caminho de todas as relações de família: bom senso e diálogo. A OMS determinou a quarentena, ou seja, isolamento social para todos. Assim, a circulação dos menores não é indicada, tendo em vista a prevalência do princípio do melhor interesse do menor. A co-participação das decisões não vai se alterar, nenhum dos pais vão se isentar de suas responsabilidades. Entretanto, em muitos casos, em que pese ser compartilhada a guarda e moradia ser alternada, existirão casos em que um dos genitores terão melhores condições de ficar com o menor e é no lar desse genitor que deve prevalecer para o menor ficar. A convivência terá que ser modificada nesse período, sendo mantida por vídeo chamadas, Skype e tantos outros meios digitais. Em caso de impossibilidade de consenso, a parte que entende que o menor está em risco, deverá ingressar na Justiça para rever a Sentença ou Acordo. Vale lembrar, ainda, que é inadmissível, aos olhos do Judiciário, dos operadores do Direito e da sociedade, que tal momento seja utilizado para realização de alienação parental”.

Festas que seriam realizadas no período da pandemia:

“A pandemia de COVID-19 atingiu à todos. Partindo desse princípio, os contratos não tiveram sua execução por conta de força maior que é a decretação do estado de calamidade pública na saúde e o isolamento social. Os contratos são pautados pelo princípio da boa-fé e do equilíbrio entre as partes, e não é crível que apenas uma das partes suporte o ônus sozinho diante da impossibilidade do cumprimento do contrato pelo caso excepcional. Dessa maneira, reaver a totalidade do pagamento da festa desequilibraria “a balança” e não seria algo justo. O diálogo deve estar aberto para uma negociação pautada no princípio da solidariedade contratual e na teoria da imprevisão para resolução dos contratos”.

Devolução de cursos extraclasse pagos por pacotes antecipados, sejam trimestral, semestral ou anual:

“Partindo desse princípio, os contratos não tiveram sua execução por conta de força maior que é a decretação do estado de calamidade pública na saúde e o isolamento social. Os contratos são pautados pelo princípio da boa-fé e do equilíbrio entre as partes, não é crível que apenas uma das partes suporte o ônus sozinha diante da impossibilidade do cumprimento. Dessa maneira, reaver a totalidade do pagamento do valor pago antecipadamente desequilibraria “a balança” e não seria algo justo. O diálogo deve estar aberto para uma negociação pautada no princípio da solidariedade contratual e na teoria da imprevisão para resolução dos contratos”.

Devolução de viagens de férias já pagas:

“A Medida Provisória 948 08/04/2020, que precisa ser aprovada pelo Senado, dispõe que as empresas não serão obrigadas a reembolsar em reais desde que ofereça remarcação, ou concessão de crédito, ou outra forma à combinar. Diante da impossibilidade, o consumidor será ressarcido em até 12 meses a contar da data do fim do estado de calamidade pública. Por enquanto, a Secretaria Nacional do Consumidor (Senacon), um Órgão do Ministério da Justiça, prevê a possibilidade de cancelamento por parte do consumidor para destinos atingidos pelo novo coronavírus. No caso de viagens, deve ser solicitado o cancelamento e restituição do pagamento, via as plataformas e-mail da operadora de viagem. Caso o consumidor encontre dificuldades, deve registrar seu pedido na ouvidoria e no serviço de atendimento ao consumidor da empresa, na Agência Nacional de Aviação Civil (Anac) e PROCON”.

Auxílio emergencial para mães:

“Se for mãe e chefe de família ou mãe solo, terá direito a dois auxílios por mês. Para receber o valor, é preciso se enquadrar em uma dessas condições: ter CNPJ como Microempreendedor Individual (MEI); estar inscrito no Cadastro Único (CadÚnico) para programas sociais do governo até o dia 20 de março; ser contribuinte individual ou facultativo do INSS; ou ser trabalhador informal ou desempregado. Estando dentro dessas opções, é preciso preencher a autodeclaração no site ou app da Caixa. Além de estar dentro de uma dessas condições, deve ter mais de 18 anos de idade; não ter emprego com carteira assinada; não receber aposentadoria, BPC, seguro-desemprego, nem ser beneficiário de programa de transferência de renda (exceção é Bolsa Família); não ter recebido rendimentos tributáveis acima de R$ 28.559,70 em 2018; ter renda mensal de até meio salário mínimo (R$ 522,50) por pessoa ou de até três salários mínimos (R$ 3.135) no total da família. Na renda familiar, serão considerados todos os rendimentos obtidos por todos os membros que moram na mesma residência, exceto o dinheiro do Bolsa Família. Se, durante o período de três meses, o beneficiário do auxílio emergencial for contratado no regime CLT ou se a renda familiar ultrapassar o limite durante o período de pagamento, ele não deixará de receber o auxílio. Caso tenha ainda alguma dúvida, a CEF disponibilizou o telefone 111 para tirar dúvidas dos trabalhadores sobre o auxílio emergencial”.

Licença maternidade em tempos de quarentena:

“A licença maternidade e a paternidade seguem sem alteração, sendo 120 dias e 5 dias, respectivamente, sem prejuízo do emprego e salário – a licença maternidade pelo período de 180 dias obrigatórios no serviço público e opcional para empresas do setor privado inscritas no Programa Empresa Cidadã também permanecem inalteradas. Em tempo: o STF decidiu recentemente que a licença maternidade começará a contar a partir da alta da internação da mãe ou bebê”.

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