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On The Principle Of Best Interests Of Children In The Child Custody System

Posted on:2006-03-26Degree:MasterType:Thesis
Country:ChinaCandidate:Y HuangFull Text:PDF
GTID:2206360155959214Subject:Civil and Commercial Law
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Historically, under the "a quasi-legal doctrine of patria potestas" , the father possessed absolute power over offspring. Offspring did not have individual legal rights, and maternal rights were almost absent. In such era, the Anglo-Saxon common law jurisdictions, early German civil jurisdictions and the civil jurisdiction of the Chinese Taiwan Region all have adopted such doctrines. With the progress of society, "patriarchy rights" doctrine has been revised into the "tender years doctrine" , which was adopted by courts of the United States. However, since 1970' s, " tender years doctrine" has been exposed to increasing scrutiny particularly from the equal protection movement. As a result of mass protest and with more evidence of the significance of patriarchy influence provided by psychologist and social workers, "tender years doctrine" was abandoned, and it has been further proclaimed that the ability to raise children is not determined by gender. Since WWII, with the increasing acceptance of the "state paternalism" and the uprising of "doctrine of child protect ion" and "children's rights and child liberation" , the adult view of minor has been revolutionized. The majority view has been: in order to maximize the benefit to the society, it is necessary to give special care to the needs of minor, treat minor as independent individuals, and afford special legal protection. With such change in ideology, "the best interests of the child' has been widely accepted and become the most popular standard in British and American courts in deciding custody cases. It is also accepted in many other jurisdictions in the world. Nonetheless, despite the supremacy of "the best interests of the child" in custody disputes inmost jurisdictions, the doctrine itself has latent deficiencies, such as ambiguity in definition, impediment of the development of criticism, and lack of constancy. In addition,cases in the United States and the Chinese Taiwan Region have shown that with the transformation of the society, adjustment of social value and progress of science, the connotation of "the best interests of the child'1 has experienced vacillating development. Indifferent times, under different social backdrops, courts citing "the best interests of the child'' could arrive at completely opposite decisions. Hence, as the Chinese legislation adopts "the best interests of the child' in determining divorce custody issues, operational statutory explanations are crucial. On one hand, judges and other law enforcement bodies can seek operational guidance in such statue; on the other hand, it could prevent opposing judgment over similar issues in different courts, "which in turn will undermine the authority of the statue. The drafting of such statue shall be specific, shall anticipate the needs and reactions of minor and shall communicate such information effectively to the law-enforcement bodies. As such, the doctrine of "the best interests of the child' would not be merely a superficial academic concern; it will also serve functionally in legal practice.
Keywords/Search Tags:Principle
PDF Full Text Request
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