scholarly journals The Co-Parental Divorce: Removing the Children from the Jurisdiction

2019 ◽  
Vol 15 (3) ◽  
pp. 645-683
Author(s):  
Julien D. Payne ◽  
Eileen Overend
Keyword(s):  
Best Interests ◽  
Alternative Form ◽  
Mediation Process ◽  
Trial Judge ◽  
Competing Interests ◽  
Custodial Parent ◽  
Contested Custody ◽  
Judicial Proceedings ◽  
Legal Criterion ◽  
Custody And Access

The preservation of parenting rights in contested custody or access proceedings arising on the dissolution of marriage necessitates a judicial reconciliation or balancing of the competing interests of the children, the parents and members of any extended or reconstituted families. In C. v. C., (unreported, March 7, 1984, Ont. S.C.) the mother was held to the terms of a prior separation agreement and was ordered not to remove the children from the Province of Ontario without the father's consent or a further order of the court. In reaching this decision, the trial judge placed heavy reliance on the evidence of a mediator who had unsuccessfully attempted to resolve the differences between the parents and who was of the opinion that the children would be at risk if the mother proceeded with her plans to remarry and establish a new home for herself and the children in England. C. v. C. raises diverse fundamental issues concerning the legal resolution of parenting disputes on marriage breakdown or divorce. The following issues are addressed in the commentary of this judgment (reproduced in annex): 1. What significance, if any, does, and should, a court give to the express terms of a separation agreement? 2. If a mediator is retained, should the mediation process, including the mediator's evaluation, be “open” (i.e. subject to disclosure to the court) or “closed” (i.e. confidential and excluded from any evidence adduced in subsequent judicial proceedings)? 3. How can the best interests of the children — the legal criterion to be applied in the adjudication of parenting disputes — be reconciled with the best interests of other concerned family members? 4. Could, and should, the court have addressed the possibility of some alternative form of parenting arrangements that might accomodate the competing interests of all the affected parties? 5. To what extent can the courts legally fetter the freedom of a custodial parent to establish a new home for (i) herself (or himself) and (ii) the children? Some of these issues are specifically addressed in the unreported reasons for judgment. Others are ignored. The purpose of this commentary is to canvass these issues and point to the need for a family-oriented approach to the resolution of parenting disputes, rather than an individual rights approach, such as has been traditionally adhered to by the courts in the adjudication of custody and access disputes.

scholarly journals Access and the non-custodial parent in the Republic of Ireland

2020 ◽  
Vol 62 (2) ◽  
pp. 199-215
Author(s):  
Anne Egan
Keyword(s):  
Best Interests ◽  
Family Court ◽  
Rights Of The Child ◽  
Parents And Children ◽  
Custodial Parent ◽  
Bona Fide ◽  
United Nations Convention ◽  
The Republic ◽  
Custodial Parents ◽  
The Right

Maintaining a relationship between parents and children following the breakdown of a marriage or relationship can be fraught with difficulties, particularly where acrimony exists between parents. This article explores the right of a non-custodial parent to have access to their child under Irish law and discusses the results of an interview-based study undertaken by the author using qualitative research methods. The interviewees in the study included practitioners as well as separated, divorced and unmarried fathers and mothers who outlined their views on access and the study found that the majority of non-custodial parents had some level of access to their child. The article further outlines the author’s experience of successfully applying to attend family court as a bona fide researcher and discusses some of the results of observations in those courts which reinforced the results of the interview-based study. Article 9(3) of the United Nations Convention on the Rights of the Child (CRC) states that in the event of separation of parents, it is the right of the child to maintain personal relations and contact with both parents. Article 7(1) of the Convention further supports the right of a child to be cared for by his or her parents. These articles have proved useful for fathers’ rights campaigners who advocate that they should have more contact with their children post-separation. The Convention, however, while ratified by Ireland, has not yet been incorporated into Irish law. The article concludes by examining whether the incorporation of the Convention would advance the rights of Irish children to maintain a relationship with their parents, unless such a relationship would be contrary to the children’s best interests. In light of this, this article examines the proposed wording of the Constitutional Referendum on Children which was published in early 2010 and assesses what impact the passing of such a referendum would have on children’s rights in Ireland.

scholarly journals Through the Looking Glass: Mediator Conceptions of Philosophy, Process and Power

1969 ◽  
pp. 819 ◽  
Author(s):  
Colleen M. Hanycz
Keyword(s):  
Qualitative Study ◽  
Civil Procedure ◽  
Best Interests ◽  
Mediation Process ◽  
Mediation Program ◽  
Self Interest ◽  
Looking Glass

While a number of civil reforms using mediation emerged across Canada in recent years, of particular interest is the Ontario Mandatory Mediation Program Mediation Program that was first piloted in 1999, deemed successful and then made a permanent feature of the Rules of Civil Procedure in 2001. This article suggests that before we can evaluate the outcomes of mandatory mediation, we must first look more closely at the process being implemented by the mediators in this context. With that in mind, this article considers the ways in which the mediators themselves perceive of the mediation process. It reports on a qualitative study that examined the nature of mediator views on the topics of, inter alia, settlement orientation and mediator power. This article advances the claim that mediator power Is, in fact, far greater than that held by the disputants or their advocates. This article suggests that this power, in the context of a mandatory mediation scheme, creates mediator self-interest in achieving high rates of settlement, regardless of whether or not settlement is in the best interests of the disputants in every situation.

scholarly journals A JUDICIAL APPRAISAL ON THE BEST INTEREST OF THE CHILD STANDARD WITH REGARD TO CUSTODY AND ACCESS DECISIONS ON DIVORCE: A CONSTITUTIONAL DEVELOPMENTAL IMPRINT

2017 ◽  
Vol 11 (2) ◽  
pp. 2401-2414
Author(s):  
Dr Nico P Swartz
Keyword(s):  
South African ◽  
Common Law ◽  
Best Interests ◽  
Court Decisions ◽  
Practical Application ◽  
Best Interest ◽  
Judicial Appraisal ◽  
Custody And Access

This paper does not cover all aspects of court decisions about the interests of the child. It is confined to only the best interest of the child with regard to custody decisions on divorce in Botswana jurisdictions with an imprint of South African law dynamics. Everyone that is involved in the operation of an understanding of the child’s situation will benefit from what is going to be discussed in this paper. This study, however, actuates much more research into the questions of the best interests of the child. The research purports the acquisition of knowledge necessary to map out the best interests of the child standard. It does so by stressing the obsolete nature and dysfunctional practice of relics of Roman-Dutch and English common law. The study paves a new direction for determination purposes of the best interests of the child in line with constitutional imperatives or values. The research drawn the theoretical modalities from other jurisdictions, but in its practical application it resort to the Botswana judicature. Case laws of Botswana in which a constitutional imprint could be detected are, for example, Ndlovu v Macheme and Mokoti v Okatswa to name but a few. The stage is set firmly now for the protection and upholding of the best interests of the child along constitutional lines.

scholarly journals MENCARI HUKUM YANG BERKEADILAN BAGI ANAK MELALUI DIVERSI

2019 ◽  
Vol 18 (2) ◽  
pp. 175
Author(s):  
Rr. Putri A. Priamsari
Keyword(s):  
New York ◽  
Juvenile Justice ◽  
Restorative Justice ◽  
Social Services ◽  
Child Protection ◽  
Best Interests ◽  
Legal Counsel ◽  
Rights Of The Child ◽  
Judicial Proceedings ◽  
The Law

<p><em>According to UNICEF, no less than 4000 Indonesian children are brought </em><em> </em><em>to court every year with reports of relatively minor crimes such as theft, persecution, spreading hoaxes and others. Where children who are faced with the law generally are not accompanied by legal counsel or social services. Indonesia has had a umbrella </em><em>act </em><em>in protecting children's welfare, namely Law Number 4 of 1979 concerning Child Welfare which was then followed by Law Number 23 of 2002 concerning Child Protection which has now been replaced with Law Number 35 of 2014 concerning Child Protection as implementation of the Convention on the Rights of the Child (Convention on the Rights of the Child, 1989, New York). Taking into account that the handling of child cases dealing with the law must really guarantee the protection of the best interests of the child and must aim at the creation of Restorative Justice, both for Children and Victims of Children and to create Restorative Justice, before resorting to judicial proceedings at the prosecution level General must strive for Diversion. Provisions regarding this diversion are also regulated in Supreme Court Regulation Number 4 of 2014 concerning Diversion. The enactment of the 2014 PERMA is intended so that juvenile justice in Indonesia can be carried out more efficiently, while still considering its welfare.</em></p><p><em> </em><em></em></p>

Anglo-American Criteria for Resolving Child Custody Disputes from the Eighteenth Century to the Present: Reflections on the Role of Socio-Cultural Change

1994 ◽  
Vol 19 (1) ◽  
pp. 35-56 ◽  
Author(s):  
Jacob Goldstein ◽  
C. Abraham Fenster
Keyword(s):  
Eighteenth Century ◽  
Cultural Change ◽  
Child Custody ◽  
Best Interests ◽  
Legal Principles ◽  
Very Young Children ◽  
Custodial Parent ◽  
Anglo American ◽  
Traditional Doctrine

Transformations (from the eighteenth century to the present) of legal and cultural criteria pertaining to child custody are examined, with special reference to issues pertaining to ipso facto preference for the father or the mother as the custodial parent. Starting out with (1) the traditional doctrine which (in theory) gave the father an absolute right to custody in the event of divorce or separation, the essay traces (2) early modifications of that doctrine, with incipient concern for the child's best interests; (3) the “tender-years” doctrine, which favored the mother as the caretaker for very young children; (4) a preference (in an almost 180-degree reversal of the traditional doctrine) for the mother as the custodial parent, except in case of the presence of what were viewed as strongly disqualifying factors; and (5) the egalitarian standard, which rejects ipso facto preference based on the parent's sex. These transformations are discussed in relation to fundamental alterations in perception of sex roles and of children's rights; to changing social and economic realities; to judicial attitudes; and to trends in de facto custody arrangements. Disparities between legal principles and social practices are noted.

Social and emotional issues of children in kinship foster care and stressors on kinship carers: A review of the Australian and international literature

2006 ◽  
Vol 31 (2) ◽  
pp. 22-29 ◽  
Author(s):  
Emer G. Dunne ◽  
Lisa J. Kettler
Keyword(s):  
Foster Care ◽  
Kinship Care ◽  
Best Interests ◽  
Alternative Form ◽  
International Literature ◽  
Social And Emotional ◽  
Kinship Foster Care ◽  
Care And Support ◽  
Emotional Issues ◽  
Outcomes For Children

The aim of this paper is to review the Australian and international literature on social and emotional issues affecting children in kinship foster care and to examine stresses experienced by kinship foster carers.There is a growing trend of kinship foster care as an alternative form of care for children in Australia and overseas which is attributed to factors such as child abuse, parental incapacity, parental incarceration, and parental substance misuse. The ideology supporting the use of kinship care is that it is in the child’s best interests because it helps them to maintain ties with their family of origin.A comprehensive search of the literature on kinship care was undertaken and articles addressing social and emotional issues of children in kinship care or their carers were selected for critical review.The literature suggests that children placed with kinship foster carers suffer from a range of social and emotional issues and these may impact on outcomes in adulthood. The existing literature does not, however, adequately differentiate the impacts of kinship care itself from the children’s pre-existing difficulties and there is a paucity of literature comparing kinship care outcomes with outcomes for children who have experienced other forms of out-of-home care. Common factors experienced by kinship foster carers that can make it challenging for them to deal with children’s issues are economic disadvantage, stress, health issues and lack of resources.In conclusion, this review supports the arguments for assessment and interventions for children in kinship foster care; and support, parent training and interventions for kinship carers. Longitudinal studies are needed in this area.

Development as Entangled Knot: The Case of the Slaughter Renunciation Movement in Tibet, China

2015 ◽  
Vol 74 (4) ◽  
pp. 927-951 ◽  
Author(s):  
Gaerrang (Kabzung)
Keyword(s):  
Alternative Form ◽  
Meat Industry ◽  
Tibetan Buddhist ◽  
Target Groups ◽  
Conceptual Tool ◽  
Competing Interests ◽  
Multiple Power ◽  
Complex Relationships ◽  
Religious Reasons ◽  
Tibetan Herders

A common conceptualization of development as a binary relationship between trustees and target groups is inadequate. This article proposes the metaphor of development as an entangled cultural knot, constituted by multiple power relations. It uses this concept to analyze a recent slaughter renunciation movement, in which some leading Tibetan Nyingma masters from Larung Gar have suggested that Tibetan herders give up selling their livestock to the slaughter market for religious reasons. The movement reflects an alternative form of development articulated by several leading Tibetan Buddhist teachers, particularly Khenpo Tsultrim Lodroe, yet it goes against the state project of developing the yak meat industry. This movement has been criticized not only by state officials, but also by secular Tibetan intellectuals, as well as by herders. This article argues that the complex relationships among Tibetan Nyingma teachers, state officials, Tibetan secularists, and herders; their shared and competing interests; and the apparently contradictory positions they take on various issues require a much more sophisticated conceptual tool than the simple dichotomous conceptualization of development.

“Reconstructing” The Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada

1995 ◽  
Vol 10 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Dawn M. Bourque
Keyword(s):  
Sexual Abuse ◽  
Social Policy ◽  
Family Law ◽  
Nuclear Family ◽  
Wife Abuse ◽  
Best Interests ◽  
Legal Custody ◽  
Sole Custody ◽  
Recent Developments ◽  
Custody And Access

Abstract — Examining recent (1990 to 1993) reported Canadian cases on custody and access, I document a movement toward a re-privatisation of “family” to a traditional patriarchal nuclear form. Patterns of privatisation, readily apparent in economic and social policy are also evident within family law. Custody and access determinations in a separation or post-separation setting represent a moment where these implicit tactics become visible; the result is serious limits placed on the freedom and safety of women and their children. Focus on issues of custodial mothers' mobility, wife abuse and allegations of child physical and/or sexual abuse reveals a propensity on the part of the judiciary to prioritise paternal access to children as a criterion of the “best interests of the child.” Like joint legal custody, which the Canadian courts are still reluctant to impose on unwilling parents, de facto joint custody is occurring under sole custody orders. These tendencies ensure the separated or divorced “family” will be “re-onstructed” and re-privatised along familiar patriarchal lines.

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