Vol. 39, No. 2, Summer 2005
Symposium on Comparative Custody Law
D. Marianne Blair & Merle H. Weiner, Introduction: Resolving Parental Custody Disputes--A Comparative Exploration, 39 FAM. L.Q. 247 (2005).
These authors provide an overview of the seventeen articles included in this special issue, a Symposium on Comparative Custody Law. The authors note the diversity of countries represented and explore the similarities and differences in substantive norms and procedural mechanisms used to regulate the allocation of parental rights and responsibilities following separation or divorce. The article chronicles similarities in approaches, including the dominance of civil regulation, a clear emphasis on private ordering, a widespread use of conciliation and mediation procedures, and attention to the child's role in the decision-making process. The authors also acknowledges the role of international instruments as well as the customs and qualities that give each society its unique character.
N.V. Lowe, The Allocation of Parental Rights and Responsibilities--the Position in England and Wales, 39 FAM. L.Q. 267 (2005).
This author explores the evolution of English child law prior to and after enactment of the Children Act of 1989. He describes the mixture of common law and statute that preceded the Act and explains that developments emerged on an ad hoc basis, predominantly in terms of remedies rather than rights. He then explains the provisions of the 1989 Act and the impact of its goals to gather together all the law relating to the care and upbringing of children and the provision of social services for them and to provide a consistent set of legal remedies available in all courts and all proceedings.
Hugues Fulchiron, Custody and Separated Families: The Example of French Law, 39 FAM. L.Q. 301 (2005).
The author explains that under French law, the separation of parents has no effect on the rules of devolution of the exercise of parental authority. He states the rules as set forth in the Civil Code and discusses what he calls the "somewhat unrealistic" approach of French lawmakers who appear to be so nostalgic for a sort of lost family paradise that they have produced many fine words in dreaming of a family united around the child, even in separation. He discusses the principle and proposed model for the French system.
Nina Dethloff, Parental Rights and Responsibilities in Germany, 39 FAM. L.Q. 315 (2005).
This article outlines the fundamental changes in the law of parental responsibilities in Germany. It outlines the custody right, the right of access, decisions on custody and access in cross-border situations, and the extent to which reform is required in the area of parental responsibility.
Theofano, Papazissi, The Function of Parental Care and Custody and the MinorÆs Opinion in Greece, 39 FAM. L.Q. 339 (2005).
The author explains the public policy of Greece, which dictates that the parent-child relationship is not dependent upon marriage, but is legally created whenever a woman gives birth to a child and a man acknowledges a child or when a man and a woman adopt a child. Each parent has a legal right and obligation to parent a child, and parental care is exercised jointly. The court regulates the exercise of parental care in the case of annulment, divorce, or separation according to the best interest of the child. And the opinion of the child must be taken into consideration. Greece's public policy could pose an important impediment to the recognition of foreign decisions, even among members of the European Union.
Olga A. Khazova, Allocation of Parental Rights and Responsibilities after Separation and Divorce under Russian Law, 39 FAM. L.Q. 373 (2005).
The author explores the fundamental rights established under the new Russian Constitution, adopted in 1993, and explains parental rights and responsibilities after separation and divorce as practiced in the Russian civil law system. She also discusses the impact of the U.N. Convention on the Rights of the Child 1989 and the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
Eva Ryrstedt, Custody of Children in Sweden, 39 FAM. L.Q. 393 (2005).
This author explores custody law in Sweden, specifically the joint custody norm; conflict resolution options; the individualized approach to custody decisions, rather than a "best interest"standard; and the important role of the child's preference.
Bolaji Owasanoye, The Regulation of Child Custody and Access in Nigeria, 39 FAM. L.Q. 405 (2005).
The author explains that in spite of passage of the Children's Rights Act of 2003, which sets forth rights and protections for children in the event of their parentsÆ divorce or separation, Nigerian custody law remains a product of the laws regulating marriage. Where there is no marriage, common law or customary law may apply. The author explains the precarious situation of children in Nigeria as the State Houses of Assembly have yet to fully implement the Children's Rights Act.
Sandra Burman, Allocating Parental Rights and Responsibilities in South Africa, 39 FAM. L.Q. 429 (2005).
The author explains the current status of parental rights and responsibilities in South Africa. She notes that although legislation has advanced protections for children whose parents divorce or separate under common law, progress is extremely slow because most unions are not terminated in the courts. Most families operate outside the common law for purposes of termination of marriage. The majority of South African children benefit from these laws only when state protective proceedings are initiated in cases of abuse and neglect.
Asha Bajpai, Custody and Guardianship of Children in India, 39 FAM. L.Q. 441 (2005).
This author explores the principles set forth by Indian courts as they apply the best interest of the child principle. They include that a child of tender age needs a mother's love and care; neither father nor mother automatically get custody based on gender; the aim of custody dispute resolution is not to punish a parent but to ensure the welfare of the child; fathers cannot be granted custody only on the ground of economic superiority; courts must ascertain the wishes of the child, if he or she is capable of expressing them; a mother cannot be denied custody simply because she works outside the home; and visitation is the right of the child and not of the parent.
S.N. Ebrahimi, Child Custody (Hizanat) under Iranian Law: An Analytical Discussion, 39 FAM. L.Q. 459 (2005).
This author sheds light on the institutions that protect children's rights and interests under Iranian law and discusses the concept and responsibilities of Hizanat.
Xia Yinlan, The Legal System of Guardianship over Minors in the People's Republic of China, 39 FAM. L.Q. 477 (2005).
The author explores the current state of law governing the custody of minor children in the People's Republic of China. She concludes that current provisions are still too generalized to be effective; that the legal mechanisms administering the custody system are not functioning well; and that significant gaps exist in current substantive law.
Satoshi Minamikata, Resolution of Disputes over Parental Rights and Duties in a Marital Dissolution Case in Japan: A Nonlitigious Approach in Chotei (Family Court Mediation), 39 FAM. L.Q. 489 (2005).
This article examines the process used in Japan to resolve disputes over the allocation of parental rights and duties following parental separation or divorce. She focuses on procedure and criteria for dealing with these disputes in Chotei--the court mediation process--and through the judicial determination process of the family courts.
Patrick Parkinson, The Law of Postseparation Parenting in Australia, 39 FAM. L.Q. 507 (2005).
This article explains the division of legislative responsibility in parenting matters and the language used in Australia in place of "custody." It explores the procedure and substantive law involved in allocating parental rights and responsibilities and addresses the international child abduction and recognition of overseersÆ child custody determinations.
Patricia Begne, Parental Authority and Child Custody in Mexico, 39 FAM. L.Q. 527 (2005).
This article examines the definition of parental authority, discusses the roots of this institution, and analyzes the treatment of parental authority in Mexican law. The author focuses on the Mexican Federal Civil Code and other documents relating to its provisions, as well as a number of Mexican Supreme Court decisions.
Cecilia P. Grosman & Ida Ariana Scherman, Argentina: Criteria for Child Custody Separation and Divorce, 39 FAM. L.Q. 543 (2005).
The authors explore the current Argentine statutory system that provides for sole custody upon separation or divorce and consequently awards parental authority to the custodial parent. This system deprives the noncustodial parent of his or her role as a parent and generally does not serve the child as it results in "role overload" for mothers and encourages fathers to falter in their duty of support to the child.
Rodrigo da Cunha Pereira, The Parental Relationship in Brazilian Law: A Study of Custody, 39 FAM. L.Q. 563 (2005).
The parental relationship and the institution of custody have undergone significant changes during the past few decades under Brazilian law. Currently, decisions regarding the allocation of custody following a divorce have been separated from the issue of fault in the dissolution of the marriage. The most relevant factor in awarding custody is to determine which parent has the greatest capacity to care for the children, considering their emotional, social, psychological, and familial needs.
Publication Date: October 2005