Research On The Guardianship Of Divorced Parents Under The Principle Of Child's Best Interests

With the increasing divorce rate in modern society,the original trigonometric structure of raising children has been broken.How to properly arrange their minor children after their parents divorce has become the focus of legal attention.Studying and solving the problem of guardianship of divorced parents is not only conducive to the healthy growth and development of minor children,but also conducive to social harmony and stability.Due to the immature body and mind and the lack of complete behavior ability,minor children need special care and protection from their parents and families,so their interests are mainly reflected in the guardianship of their parents.At the same time,the principle of the best interests of children has become the highest standard in dealing with children’s affairs worldwide.Many countries have introduced this principle into the custody duty of divorced parents to protect the best interests of minor children.However,the introduction of this principle is not achieved overnight,through long-term research and development.The emergence of the principle of the best interests of child is closely related to the evolution of the parentage law.It could be said that the evolution of the parentage law provides the possibility for the birth of the principle.Throughout the history of the guardianship system,we conclude that the guardianship mode of the guardianship system has developed along the vein from the family-based stage to the parent-based stage and then to the child-based stage.Due to the different emphasis of parent-child relationship between parents and children at each stage,the guardianship mode is different at each stage:family-based stage,which emphasizes the domination and control of parents over children;at the parent-based stage,the guardianship mode emphasizes the rights of parents over children,and the interests of parents are above the interests of children;at the child-based stage,parents and children develop.Subversive changes have taken place in the relationship between children,who have independent subjectivity and are divorced from the framework of parental rights.At the same time,the cause of child protection in the world has been developing continuously.Through several international conferences and documents,the principle of the best interests of children has been put forward,which has been clearly stipulated and given legal status in the Convention on the Rights of the Child promulgated in 1989.Since then,the principle of the best interests of children has become the highest standard in dealing with children’s affairs worldwide.This principle gives children the legal subject status,emphasizing that the best interests of children should be the primary consideration in all matters concerning children.Although there is no specific meaning of the principle,it is still a "milestone" in the cause of child protection.Since then,many countries and regions have revised their relevant laws in accordance with this principle and made efforts to refine it so as to make it operable,especially the legislative provisions on the guardianship system of divorced parents.Most of them clearly stipulate that the best interests of children should be taken into account first when it comes to the guardianship of minor children.On the contrary,there are still some deficiencies in the legislation of the guardianship system of divorced parents in China,which should be perfected on the basis of the principle of the best interests of the children,foreign experience and national conditions:adopting the concept of narrow guardianship in the legislative style,distinguishing between parental rights and general guardianship;making clear and independent provisions on the principle of the best interests of child in marriage and family,and implementing the principle concerning the guardianship of divorced parents.In this way minimizing the negative impact of divorce on minor children,protecting the rights and interests of minor children,and the child could be properly arranged after their parents divorce.