Custody Rights Research Articles

INTERNATIONAL LEGAL COOPERATION AND THE PRINCIPLE OF JURISDICTION: LESSONS FROM FAMILY LAW

This extended abstract aims to point out the need to conceptualize the principle of jurisdiction and to identify its main controversies in the field of international legal cooperation. Issues related to the notion of public order, private autonomy, rights and procedural guarantees, among others, have proved to be fundamental for a more adequate understanding of the subject of jurisdiction from the perspective of international legal cooperation. The specific study will address Hague Convention´s approach to the civil aspects of international child abduction related to the theme “right of custody” under the Family Law.

POLICE DUTIES IN PROCEEDINGS CONCERNING FAMILY MATTERS OF MINORS UNDER SELECTED EU AND INTERNATIONAL LAW (WITH PARTICULAR REFERENCE TO CASES OF CHILD ABDUCTION)

The interests of children are of paramount importance, therefore it is sometimes necessary for the authorities to interfere in matters relating to their custody, when a child is likely to have been wrongfully removed or retained in breach of the rights of custody attributed to a person, an institution or any other body (child abduction). Therefore a number of international and European Union legal acts impose on national legislators the obligation to introduce mechanisms involving central authorities into cooperation with each other and promoting cooperation amongst the competent authorities in their respective states to make proper discoveries to secure the prompt return of children. For this purpose, the Law of 26 January 2018 on the exercise of certain acts of the central authority in family matters relating to legal transactions under European Union law and international agreements was adopted. Pursuant to its provisions, Police offi cers shall, by virtue of their specifi c powers, assist the central authority and the courts on matters relating to the abduction of minors abroad. Their role is mainly linked to providing the authorities with relevant information, assisting the probation offi cer, and searching the place where the minor is presumed to be living.

Nancy Astor, Women and Politics, 1919–1945

Nancy Astor was the first woman elected to the House of Commons, in 1919. She succeeded her husband in his Plymouth constituency when he inherited a seat in the House of Lords, so avoided the discrimination which for decades prevented the selection of many women for winnable seats. She was not a suffragist, or, when elected, a feminist, but the hostility of many men, in and out of parliament, to her presence in the Commons stimulated her support for some, though not all, causes for which the women’s movement campaigned. She promoted equal pay, equal work opportunities, custody rights and the equal franchise, among other things, with some success, but was dubious about divorce and birth control due to her faith in Christian Science and its moral strictures. She was passionately anti-war, so like other feminists and pacifists was an ‘appeaser’. She was not a ‘crypto-Nazi’ as she was, and sometimes is, represented. She facilitated contact between women activists and MPs, male and female, and encouraged cross-party co-operation among women MPs. She was a popular and regular public speaker and widened the appeal of many aims of the women’s movement among women who were dubious about feminism. She was a Conservative who never followed the party line and an active promoter of state welfare measures, especially for young children. She was popular in Plymouth and supported her constituents through World War Two, but stood down in 1945 and left politics when Labour was likely to win the seat in the landslide election. Overall, her greatest contribution is that she significantly raised the profile of women in British politics and assisted the very gradual shift to greater gender equality and expansion of state welfare between the wars and through World War Two.

The Concept and Historical Background of Custody Evaluation.

This article reviews a wide range of literature on the standards and process of child custody evaluation in the US, and proposes custody evaluation standards appropriate to Korea. Custody evaluation refers to the process of making psychiatric and psychological evaluations of each parent and the child during a custody dispute and presenting to the family court a report of custody evaluation with the aim of safeguarding the best interests of the child. In the past, it was thought that children arethe fathers’ possessions or that younger children should be raised by the mother; however, currently, custody rights are evaluated in accordance with the principle of the best interests of the child. The principle is all-encompassing and vague and hence, the court makes increasingly more requests to mental health professionals for custody evaluation. Since the Seoul Family Court introduced the expert consultation system in 2017, the involvement of mental health professionals in child custody decisions has increased in Korea. Custody evaluators should try to be neutral and find the objective facts, keeping in mind that their role is to aid the court in making a custody decision.

International Legal Cooperation And The Principle of Jurisdiction: Lessons from family law

This extended abstract aims to point out the need to conceptualize the principle of jurisdiction and to identify its main controversies in the field of international legal cooperation. Issues related to the notion of public order, private autonomy, rights and procedural guarantees, among others, have proved to be fundamental for a more adequate understanding of the subject of jurisdiction from the perspective of international legal cooperation. The specific study will address Hague Convention´s approach to the civil aspects of international child abduction related to the theme “right of custody” under the Family Law.

THE EU COMMISSION'S PROPOSAL TO REVISE THE BRUSSELS IIa REGULATION: SHORTCOMINGS OF THE “OVERRIDING RULE”

As the procedure for the revision of the Brussels IIa Regulation is currently pending in the European Union, this paper focuses on the two issues which are correlated through the so-called “overriding rule” mechanism. The first problem concerns the proceeding on the return of the wrongfully removed or retained child involving two EU Member States – the State of refuge and the State where the child was habitually resident immediately before the abduction. The second one tackles the proceeding, currently regulated in the Brussels IIa, on the rights of custody (parental responsibility) when the return of the child was refused in the EU State on the grounds of Art. 13 of the Hague Child Abduction Convention. The proposals for the revision of the Brussels IIa Regulation heavily involve these issues. In that respect, the author indicates certain shortcomings and inconsistencies of the amendments proposed by the European Commission in the Proposal to Revise the Brussels IIa Regulation (2016) and the latest compromise solutions suggested by the Presidency to the Council in the General Approach to the Recast of Brussels IIa (2018). At the same time, the paper suggests two possible ways in which the balance between the principle of mutual trust between the EU Member States and the principle of the child's best interest could be better balanced. From the perspective of Private International Law of the Republic of Serbia, the revision of the Brussels IIa Regulation is important in view of Serbia’s candidate status for EU membership and the need to keep an eye on changes to the secondary EU legislation.

The transforming family: Heterologous fertilization and the new expressions of family relationships in Italian jurisprudence and European Court of Human Rights rulings

The rise of Medically Assisted Procreation has led to the issue of how to determine who is entitled to parental status and custody rights. In this article, the author comments upon the rationale and legal principles that Italian Courts have applied in order to solve those problems, given the absence of a targeted piece of legislation. The principle of the child’s best interests, the ‘public order’ clause and various rulings from the European Court of Human Rights constitute the foundations on which legal trends have developed, allowing same-sex couples to become parents through ‘stepchild adoption’ or the legal registration of children born through heterologous fertilization practices abroad. Italy has therefore repositioned itself a step closer to the middle ground with respect to the overall European scenario: Italy’s law now acknowledges motherhood for intended mothers, although it continues to stop short of recognizing same-sex marriage.

District schools and the erosion of parental rights under the Poor Law: a case study from London (1889–1899)

AbstractThis article investigates the empirical backing for the claim that poor law officials needed legal authority to refuse poor parents’ right to the custody of their children in order to stabilise children's welfare institutions during the nineteenth century. Although workhouses were capable of accommodating children, Victorian lawmakers feared children would model themselves on adult paupers to become permanent burdens on the state. To tackle this problem, a system of children's welfare institutions called ‘district schools’ was introduced to train children to become industrious adult labourers. Children were usually classified as orphans or deserted so they could be sent to district schools without fear of family intervention. However, children with ambiguous parental circumstances were labelled as ‘other’ and considered a problematic class because they were perceived to be at risk of having on-going contact with their birth families. Lawmakers feared parents of ‘other’ children would undermine reformation efforts by asserting their custody rights, and passed the first laws in English history to allow the state to restrict parental rights on this basis. This article explores the claim of unwanted parental involvement, and in doing so, seeks to contextualise the origins of public law interference in the family sphere within a narrative of imposed citizenship rather than protection.

THE PROBLEM OF THE EXECUTION OF CHILD CUSTODY (HADANAH) DECISION BY THE RELIGIOUS COURTS IN INDONESIA

This article analyses the problems in the execution of child custody decision by Religious Courts in Indonesia. The implementation of court decisions reflects the court’s dignity. However, the victory over child custody decision issued by the Court sometimes only the formality on the paper. Sometimes, the implementation of the court decision is hindered if there is no willingness from the involved parties. This research uses normative legal research method with conceptual approach and field research. This research found that the implementation of child custody decision is prevented by the quality of verdict, inadequate rule of execution, and the norm which woman is perceived as the better party to hold child custody rights. In addition, the execution of child custody decision cannot be adequately implemented using Het Herziene Indonesisch Reglement (HIR) solely, but it needs new regulation to accommodate the child interest, lawfully and psychologically.

Akibat Hukum Pengangkatan Anak menurut Undang-Undang Nomor 23 Tahun 2002 tentang Perlindungan Anak

<h1>The purpose of this study is to assess the legal provisions of the children under Law No. 23 of 2002 and to explain the consequences of the child's adoption law. In addition, to know the legal protection of adopted children under the Child Protection Act is reviewed from Islamic Law Preformance law Practice in Indonesia. To examine the matter, a descriptive study was conducted with a normative juridical approach that was conducted only on the written rules. The collection of data is derived from the literature research and supported field research studies on the appointment of Court and Civil registry office. Primary data collection tools are informant with the interview guidelines whereas data analysis is done with a qualitative approach using the logical and inductive thinking logic in the field of law. In the content of this article shows that, firstly, the consequences of child adoption generally arise with the appointment of a court by not deciding the adoption of adopted children with their biological parents, which switching is the right of custody. In the case of inheritance, the appointment of children based on the determination of the Court of Justice is entitled to the inheritance of his adoptive parents based on wills. Thirdly, with the determination of the adoption of children from the courts, the consequence is the protection of adopted children can be assured of the custody of the law and the inheritance of its adoptive parents.</h1><h1> </h1>

New Perspectives on the Political Economy of Great Zimbabwe

This review draws from old and new archaeological data and takes interpretive flavor from indigenous African concepts to demonstrate that, within a context of local and external interfaces, Great Zimbabwe’s political economy was a mosaic rooted more in a mix of seasonally specific, household-based, compositional strategies of production and circulation and less in the redistribution of archaeologically low-frequency exotics from the Indian Ocean. An ideology based on the hierarchical triad of land, ancestors, and belief in God underwrote custodial rights and extractive powers that at times enabled rulers to access a share of productive, allocative, and circulative activities in their territories. Simultaneously, households and communities freely participated in the economy, often inside and outside state control and influence, demonstrating the individual, collective, mixed, embedded, and capillary nature of the political economy.

Parental Rights for Lesbian, Gay, Bisexual and Transsexual Persons: A Comparison Between the European and Inter-American Systems of Human Rights

This article addresses the question of parental rights for lesbian, gay, bisexual and transsexual persons (LGBT). Through an analysis of the relevant jurisprudence of the Inter-American Court of Human Rights and the European Court of Human Rights, it will look at the right to a family, the right to privacy and the right to non-discrimination, since these rights are the ones that are always invoked by the petitioners. More precisely, this article will look at the question of adoption for homosexual individuals and same-sex couples, as well as the issue of children custody rights.

HAK HADHANAH DALAM PUTUSAN PENGADILAN AGAMA

The purpose of the research is to reveal the rights of custody of children that have not been mumajiz if there is a divorce seen from the requirements set by the ulama in Islamic law or the benefit of the child. Today's condition often happens to mothers or apostates who cause divorce, or the condition of mothers who have divorced their husbands as career women. Does it have implications for hadhanah rights for mothers or fathers? The normative qualitative approach was applied in this study. The results of the discussion of the four cases decided by the Religious Court which became the object of research gave foster rights (hadhanah) to fathers because fathers have competence in child care, such as having good moral, having competence in the science of education and social competence that is responsible and prioritizes the benefit of children from to determine the rights of mothers as child care. In this condition the father fulfills the requirements of the hadhin compared to the mother.

De las excepciones en la Sustracción Internacional de persona menor de 16 años. Visión doctrinal y jurisprudencial, con énfasis en el proceso nicaragüense

La sustracción internacional de menores es una institución que se halla contenida en el Convenio de la Haya de 1980, del cual Nicaragua es país suscriptor. El contenido del Convenio estructura los mecanismos generales que sobre dicha materia cada uno de los Estados suscriptores ha de adoptar e incorporar en su ordenamiento jurídico. No obstante, la finalidad de dicho instrumento internacional consiste en la tutela del derecho de custodia y visitas propio de uno de los progenitores cuando el otro ha sustraído de su domicilio al niño, niña o adolescente. Respecto a esta materia, dentro de nuestro ordenamiento nacional, el Código de Familia sienta algunas reglas de carácter general, remitiendo en consecuencia, a lo dispuesto en los instrumentos internacionales con vigencia en nuestro Derecho, no obstante, en este trabajo se destaca la existencia de normas distintas a las que remite el Código de Familia, las cuales deben ser tenidas en cuenta para la solución de conflictos. Otro elemento en el que se centra la atención en esta investigación es la necesidad de coordinación entre las autoridades competentes, lo cual se realiza por medio del análisis de casos y de doctrina jurisprudencial de algunos países de nuestro entorno cultural; seguidamente, se describe el procedimiento tanto administrativo como judicial que pone en práctica las disposiciones del Convenio, a propósito de lo cual se evidencia que los aplicadores realizan interpretaciones inadecuadas de las normas cuando se las analiza en concurrencia con otras normas concomitantes, en especial, cuando se trata de causas con ocasión de la sustracción internacional del país de residencia habitual y de las excepciones especiales que las partes pueden oponer a la solicitud de restitución inmediata del niño, niña o adolescente. En fin, este trabajo pretende presentar una suerte de guía para una correcta implementación a los supuestos de sustracción internacional y a la vez, evidenciar la necesidad de crear una ley especial sobre la materia.

Undoing a model system: A new federal Custody Notification Service

The Custody Notification Service is a legislative scheme to prevent Aboriginal deaths in custody. This article discusses proposed changes to the federal Custody Notification Service, that were before the federal Parliament in late 2017. It argues that the changes are inadequate, when compared with Custody Notification Service models in other Australian jurisdictions, primarily because the laws deprive Aboriginal people of important fair trial and custody rights. This article concludes by listing a range of legislative solutions proposed by Aboriginal organisations and legal representatives.

Detection of Drug-Exposed Newborns.

Maternal substance abuse during pregnancy is a growing problem with major public health and legal concerns. In utero substance exposure may adversely affect neonatal development; pregnancy outcome; and the long-term behavioral, cognitive, and developmental abilities of the child. Also, serious legal implications are associated with substance abuse during pregnancy, including charges of child abuse and neglect that may result in the removal of the neonate from parental care and loss of custodial rights. Timely detection of in utero drug exposure is necessary for early identification and effective management of exposed newborns. Accurate identification of drug-exposed newborns relies on maternal history; clinical presentation of the newborn; and laboratory testing of biological maternal matrices (ie, urine, blood, oral fluid, sweat, hair, and breast milk), neonatal matrices (ie, urine, meconium, hair, and umbilical cord blood and tissue), and/or matrices from both the mother and neonate (ie, placenta and amniotic fluid). Evaluation of biological matrices can account for in utero exposure at various stages of gestation and approximate the period (recent versus chronic use) of substance exposure. Each matrix has its own unique advantages and limitations in terms of ease of collection, the window of gestational exposure represented, and sensitivity for different parent drug analytes and metabolites, which must be carefully considered for accurate interpretation of results. Analytical approaches to sample preparation and analysis vary based on the complexity of these biological matrices. Immunoassays are routinely used for screening, and chromatographic separation coupled to mass spectrometry detection method is commonly used for definitive (confirmatory) testing. Some laboratories use a single technology for all testing. This review provides a discussion on approaches used to detect drug-exposed newborns, biological specimens that have been studied to identify and characterize drug exposures, example analytical methods for meconium and umbilical cord tissue as well as considerations surrounding the interpretation of results. A possible algorithm for testing is also proposed.

Children of Reunion: Vietnamese Adoptions and the Politics of Family Migrations by Allison Varzally

Reviewed by: Children of Reunion: Vietnamese Adoptions and the Politics of Family Migrations by Allison Varzally Jana Lipman Children of Reunion: Vietnamese Adoptions and the Politics of Family Migrations. By Allison Varzally. Chapel Hill: University of North Carolina Press, 2017. xvi + 222 pp. Cloth $80, paper $29.95. Allison Varzally's Children of Reunion: Vietnamese Adoptions and the Politics of Family Migrations is an excellent contribution to the growing literature on [End Page 130] US-Vietnam relations after 1975 and gender and foreign policy. The book provides a nuanced examination of the fraught politics of adoption, recognizing the competing stories of Vietnamese and US parents and always finding the balance between personal stories and political significance. This book will be read alongside recent works in Critical Refugee Studies, by scholars like Yen Le Espiritu, and in the recent proliferation of books on international adoption, such as Catherine Ceniza Choy's Global Families: A History of Asian International Adoption and Laura Briggs' Somebody's Children: The Politics of Transracial and Transnational Adoption. Varzally neither sees Vietnamese adoptees as helpless or forlorn, as they were often depicted in the media, nor does she take a uniformly critical stance against international and interracial adoptions. Instead, she views adoptees as migrants, and ones with agency, choice, and the political wherewithal to navigate multiple bureaucratic and cultural encounters in Vietnam and the United States. She argues, "Conceptualized as immigrants seeking economic improvement and connections with family, the adopted recovered their agency and culpability, thus supporting broader, more nuanced interpretations" (6). Varzally's work is original on multiple fronts, and her fresh conceptualization begins in chapter 1. Most accounts of Vietnamese adoptions utilize a post-1975 chronology, but Varzally fruitfully starts with the American adoption of Vietnamese children during (and not just after) the US war in Vietnam. In this thoughtful chapter, she argues that US adults could use a wide range of ideological justifications for adopting Vietnamese children. On the one hand, adoption agencies like Holt International established a framework whereby international adoption was firmly wedded to evangelical Christianity and anticommunism. On the other hand, young couples and single women who opposed the war in Vietnam also adopted Vietnamese children, and Varzally illustrates how they framed their actions as a way of compensating for US violence in the region. Varzally also includes an analysis of racial politics, and the ways in which discourses of "color blind" families made distinct racial choices. The second chapter covers the more well-known story of Operation Babylift, whereby hundreds of Vietnamese children were "rescued" from Vietnam in April 1975. Along with highly dubious adoption policies, it is infamous for a plane crash that resulted in numerous Vietnamese children's deaths. Varzally's work is the best analysis I have read on Operation Babylift. She does not dwell on the tragedy of the plane crash or an easy critique of the US "rescue narrative." Instead, she excavates powerful stories of Vietnamese women who came to the United States later in 1975 and who tenaciously sought to regain custody of their children through the US court system. These stories were painful, and [End Page 131] more numerous than I would have imagined, and Varzally traces the custody battles between US adoptive parents and Vietnamese women. These were high-profile cases, and the Center for Constitutional Rights, a well-known civil rights organization, played a leading role in representing Vietnamese families' custody claims. Varzally writes, "Indeed, the custody conflicts typically pitted the material comforts, nuclear form, and economic advantages of American couples against the cultural, historical, and natural claims of Vietnamese families seeking restoration" (72). In this chapter Varzally showcases the political knowledge of Vietnamese women who sought to regain custody rights, and the sometimes heart-breaking stories of family rupture and reunion. The final two chapters allow for Vietnamese adoptees' own voices to be more front and center. Chapter 3 narrates the story of Vietnamese Amerasian immigration, and she demonstrates how the Orderly Departure Program and the 1987 Homecoming Act reshaped Amerasian stories in Vietnam and the United States. The concluding chapter allows for many young Vietnamese adoptees to share their stories and ideas related to identity, race, nationality, and family...

Aliénation parentale, abus psychologique de l’enfant et DSM-5

Psychiatric experts find it is easier to deal with more horrible crimes than highly conflictual divorces. In the former, projections are impossible and “files” raise very interesting issues with regard to criminology; in contrast, in the latter the expert is confronted not just with a family but also and lest one forget, a couple that at one point in time had loved each other. However, the separation resembles a bloodbath. We will not detail the various psychiatric pathologies, which may further complicate a separation: they are well-known and, on a procedural level, do not raise any specific concerns. We will however address “pathological divorces” where although individuals, assessed on a case-by-case basis, are exempt from ascertainable or developing psychiatric pathologies, pathology permeates systemic relations, inextricably linked to hatred or disgust. In this light, fault-based divorces still remain rare: it is in this context, marked by defiance and doubt as to the parental competence of each member of the couple that the psychiatric expert intervenes, with a similar acknowledged mission to that of the court: recommendations to be offered regarding visitation and custody rights. Amongst the conflictual and inextricable situations the most often encountered in expert practice, the parental alienation syndrome (PAS) now known as parental alienation (PA) refers to all psychopathological manifestations observed in children subject to highly conflictual parental separations, and above all, the unjustified or inexplicable rejection of a parent by a child (or even by siblings). This recent entity has raised controversy: some even go so far as to deny the existence itself of this phenomenon claiming that it does not appear in the international classifications of psychiatric disorders. Consequently, it was not included in the last edition of the DSM and does not appear in the ICD classification of the OMS whose 11th edition is currently being prepared. The weaknesses in the scientific concept and its purely passionate dimension, including sexist controversies, must be carefully elucidated in the dismissal or denial of this pathology. The author raises various definitions of parental alienation of which the most recent is undoubtedly the least controversial. He discusses the reasons for the dismissal of the concept by the Scientific Committee of the DSM-5. This dismissal is however quite apparent as although the term “parental alienation” is not contained therein, we will show that the notion is clearly referred to in at least two chapters of the new American classification of mental disorders.

Joined and Responsible Parenting

Abstract In the contemporary family law, parents are obliged to arrange the joined implementation of the parenting rights either by their own will or through the help of their lawyers and/or mediators. This institute of mutual agreement is known as joined custody or joined implementation of the parenting right after the divorce of the marriage. This institute makes it possible for parents who live separately to arrange their custody rights in the most convenient way for the child. With a joined custody agreement, the parents accept the obligation to implement all the rights and duties that constitute the parenting right even in case of their separation. Through not dividing their rights from their obligations and with the aim of being closer to the needs of the child, the institute of joined custody helps avoid the feelings of hostility and disagreement in regard to the judicial decision which gives permanent custody to one of the parents. This institute is incorporated in the family law of many countries (Sweden, Norway, Finland, Denmark, UK, France, Italy, Germany, Belgium, Switzerland, Hungary, Czech Republic, USA and Australia). This article aims to emphasize the need to introduce in the family law of RM an explicit provision for joined and responsible custody after the divorce in order to achieve the best interest of the child. There is a joined initiative of parents who live separately from their children who request the amendment of the Family Law of RM in this direction.

Concubinage and Motherhood in Qing China (1644–1911)

This article explores concubinage, a widespread form of quasi-marriage in Qing China (1644–1911), and its relationship with motherhood and social mobility. By examining legal codes and court records, this research challenges the academic paradigm, mainly based on literati writings, that portrays concubines as reproductive tools for their husband-masters and their husband-masters’ wives. It shows that bearing or raising sons or daughters helped concubines achieve upward social mobility recognized and protected by law and that motherhood remained the major source of power and security for concubines in the Qing. After household divisions, concubine-mothers gained lifelong custodial rights of property, which formally consolidated concubine-mothers’ upward mobility from daughters or widows in lower-class families to matriarchs in well-to-do households.