Principles Of Family Law Research Articles

Застосування принципів сімейного права

Застосування принципів сімейного права

Joint Physical Custody or Determining Place of Residence of the Child on a Parity Basis?

The article examines the relationship that arises between parents in their separateresidence, regarding the definition of a child’s place of residence in court in the absenceof any appropriate agreement.The aim of the paper is to identify the main features of thelegal institution of a similar foreign “joint custody” of parents in the Russian legal system.For the research, the following methods were used: sociological, modeling, comparativelegal one. The court decision to determine the place of residence of a child with onlyone of the parents is in a certain conflict with the principle of their equality. Besides, thisimplementation is difficult in practice, since the court’s ability to obtain reliable informationabout relations within family is extremely limited. In the judicial practice of disputes overthe determination of the place of residence of the child, there is an unjustified bias infavor of the abandonment of the child with the mother, which, of course, does notcomply with the rules and principles of family law. Family researchers - sociologistsand psychologists note the detrimental nature of this approach and, based on foreignexperience, propose to establish principle of “joint physical custody” of parents duringtheir divorce in Russia. In the context of the Russian legal system, it is proposed to checkthe corresponding relations as the definition of the place of residence of the child on aparity basis. In addition, it is necessary to determine the conditions (relating to the will andactual circumstances) in which the application of such a rule is possible. Such conditionsshould be: the desire of each of the participants in the dispute to engage in the upbringingof the child; presence at them the relations developed with the child; absence of thefact of deprivation of parental rights or restriction in them; the presence of each of theparents the opportunity to engage in the child’s time; their place of residence should notbe removed from the center of the existing interests of the child. Actions that prevent theestablishment of this regime (for example, the change of residence of a parent living witha child without justification by his interests) should be considered an abuse of the law. Theapplication of this regime does not contradict the current legislation; therefore, there isno formal need to introduce changes into the Family Code. Nevertheless, such changesare advisable, and since such an approach is fundamentally new for our legal system andsince there is a need to define clearly the conditions for its use by the judicial authorities.

Principles of Family Law

The article discusses the problems of defining the nature of specific principles of Family Law. It is concluded that they amount to an autonomous form of law that exercises a supreme legal force as compared with other forms due to the fact that it reflects the objective socio-economic laws of the society. The author highlights the multidirectional nature of these principles. The principles' disposition in Article 1 of the RF Family Code (RF FC) indicates that they are primarily addressed to the law-maker to be taken into account during the law-making process. It is justified that the principles of Family Law are binding on courts. Some principles of Family Law are formulated as requirements applied to the conduct of the participants in family relations. Based on the content of Article 5 of the RF FC, the author concludes that the principle of good faith is to be applied to family relations. The legal nature of the principles referred to in Article 1 of the RF FC is described as the need to develop family relations based on the feelings of mutual love and respect, cooperation and responsibility towards the family of all its members

The Concept of Improving Family Law as a Necessity

The article provides an assessment of an attempt to carry out a systematic reform of Family Law of the Russian Federation. The author analyzes provisions of The Concept on Improving Family Law of the Russian Federation and Proposals for the Improvement of Family Laws in the context of expectations defined by the Concept on the State Family Policy in the Russian Federation for the period up to 2025. Special attention is paid to the principles of Family Law, their interaction and the combination within the framework of regulating family relations. The author justifies the possibility and necessity of entrenching the principle of good faith based on the presumption of good faith in contemporary Family Law. It is proposed that the principle of preserving and strengthening traditional family values should be enshrined as a principle of family law. The author draws his attention to the potential of this principle and the possibility of using it beyond family law. It is noted that there is no not only substantive but also methodological unity in the ongoing efforts aimed at improving family legislation. The author concludes that it is necessary to develop a new Concept on Improvement of Family Law in the Russian Federation.

Your Money or Your Life: Indian Parents and Child Support Modifications

In 2013, Jolene Sharp was miserably unhappy. Her marriage was over, she hated her job and she was abusing alcohol. Recognizing this lifestyle was unsustainable, Jolene decided to make a change. She quit her job, moved back home to her native village of Stebbins, in rural Alaska, and began practicing a traditional, subsistence lifestyle. This move was good for Jolene, and good for her tribe; the question however, was whether it was good for her daughter. According to The Alaska Supreme Court, it was not. The problem for the court was child support. When Jolene’s marriage ended, her husband was given primary custody of their ten-year-old daughter and Jolene was ordered to pay child support. Jolene’s support award was based on her salary as an oil executive with Alyeska, but when Jolene left her job and adopted a subsistence lifestyle, she could no longer meet her previous child support obligation. Jolene requested a modification, but it was denied. According to the court, the benefits of Jolene’s child support payments outweighed the benefits of returning to her tribe. The Sharpe court’s decision is not surprising. Courts routinely deny modification requests based on a parent’s voluntary reduction in income. Nevertheless, Sharpe is far from a traditional modification case. Sharpe concerns an Indian family therefore, it should not have been analyzed under traditional family law principles. A common mantra among Indian law scholars is “Indian law is different.” The unique status of tribes, as well as the special federal tribal relationship, means that cases concerning the best interest of Indian tribes, Indian children, and the preservation of Indian culture cannot be assumed to mimic normal family law outcomes. When viewed through an Indian law lens, Sharpe v. Sharpe is not simply about an individual parent’s request for child support modification. Rather, it is about the right of native communities to preserve their traditions and the obligation of the state and federal government to help them. The fact that the Sharpe court failed to recognize this is deeply troubling.

The constitutional parent: rights, responsibilities, and the enfranchisement of the child

In this bold and timely work, law professor Jeffrey Shulman argues that the United States Constitution does not protect a fundamental right to parent. Based on a rigorous reconsideration of the historical record, Shulman challenges the notion, held by academics and the general public alike, that parental rights have a long-standing legal pedigree. What is deeply rooted in our legal tradition and social conscience, Shulman demonstrates, is the idea that the state entrusts parents with custody of the child, and it does so only as long as parents meet their fiduciary duty to serve the developmental needs of the child. Shulman's illuminating account of American legal history is of more than academic interest. If once again we treat parenting as a delegated responsibility--as a sacred trust, not a sacred right--we will not all reach the same legal prescriptions, but we might be more willing to consider how time-honored principles of family law can effectively accommodate the evolving interests of parent, child, and state.

LOS NUEVOS PRINCIPIOS DEL DERECHO DE FAMILIA

This paper presents a critical analysis of the new principles of family law, shows the influence of Human Rights in the great transformations of family law and especially in the configuration of its new principles. Insofar, a systematization of these principles is provided, and we propose to advance in their subject matter and identify their principal manifestations in positive law. We propose as new principles of family law: the protection of the family, the protection of marriage, equity between the members of the family (spouse and children), the protection of the weakest in the family relationships (best interest of the child and weaker spouse), free will, and finally, the principle of minimum State intervention.

Legal Issues of Assisted Reproduction- the Albanian Perspective

Assisted reproduction was provided in Albania as an alternative way of reproduction by the "Reproductive Health" law of 2002. This law is an attempt to give the possibility of access in new technologies of reproduction as surrogacy, heterologues and homologues artificial reproduction to infertile persons, but since the enter into force of this law no further provisions has been made to regulate the procedures and the consequences coming from its applicability. The issue of assisted reproduction is still a subject of debate and of legislative changes as it is still not completely regulated by law. in this important issue, constitutional rights of different individuals, different interests and family law principles are involved. Ethical, scientific and legal factors are those which should be taken into consideration by the legislator in the attempt to make further legislative provisions. This paper analyses the few provisions on the assisted reproduction in the Albanian legislation. As a concept which implicates many institutions in different fields, the paper aims to give the Albanian perspective on different legal issues related to the topic. The reproductive right as human right and the state liability to ensure it through the health care system should be analyzed according to the Albanian Constitution and the European Court of Human Rights. The consequences of the ART on the family law is another legal issue with which the Albanian legislator has to deal with as the implementation of the techniques on assisted reproduction was not accompanied by the necessary changes in the provisions of family law. The legislations of different European countries which have the best experiences on the field will be put face to face and compared in order to give the best practices.

Реализация конституционных принципов семейного права в российском законодательстве

The article attends to the legislative decisions, which are not consistent with constitutional principles of family law — gender equality, equal parental responsibility for maintenance and upbringing of their child, proportionality in restriction on family rights, protection of matrimonial property.

Intended Parents and the Problem of Perspective

When asked to identify the legal parents of a child, traditional family law principles look backwards in time, primarily to biology and to marriage. People using assisted reproductive technologies such as surrogacy, however, seek to manifest their intent to become parents with a forward-looking temporal perspective, before a child is conceived and born. Of the existing doctrines used to identify parentage – marital presumption, biology, functional theories, and intent – only intent facilitates a forward-looking perspective. Intent through time, however, is not treated consistently. A woman, for example, may donate an egg, and may place a baby up for adoption, but generally cannot contract into genetic surrogacy, becoming pregnant with her own biological child with the intent of giving the child to intended parents after birth. In such a case, she must renew her intent to give up the child after birth. Intent shown by different groups is also given different weight through time: it is easier for women to opt into parenthood in advance than it is for men. Although the Supreme Court has held that different treatment of unwed mothers and fathers at birth does not violate the Equal Protection Clause, the reasons behind differential treatment by gender are not equally applicable through time. This paper argues that the ideal regime of identifying parentage allows entry of pre-birth parentage orders and creates a hierarchy of rules placing intent at the top. This regime would mandate, for example, enforcement of surrogacy agreements even where the surrogate mother bore her own biological child.

Os princípios gerais de direito, os princípios de direito de família e os direitos da personalidade

With the present study, we intend, from an analysis of general law principles and the specifics family law principles, to establish its imbrications with the personality rights.

Equal shares: rights for fathers or recognition for children?

The fathers’ rights movement in England has recently been given a huge boost by the involvement of Bob Geldof who has become their influential mouthpiece in the media and elsewhere. The movement has also diversified and adopted more high profile tactics more akin to those used in Australia and New Zealand. These tactics have challenged family law to adopt a principle of pure equality between mothers and fathers and demands that, on divorce or separation, children should be shared equally. In this paper it is argued that this demand ignores entirely the experiences of children who have lived an ‘equal shares’ arrangement for many years and that it reduces children to passive objects who can have no voice in a system designed only to create equality between adults. It is argued that rather than pushing the principles of family law back towards simplistic notions of equality, what is needed is a policy based on recognition rather than rights.

The management of severely malformed newborn infants: the case of conjoined twins

The birth of ‘Siamese’ twins in August 2000 whose parents refused to consent to surgery for separation required English courts to decide whether the twins could lawfully be separated despite that refusal when one twin would certainly die as a direct surgical result. The Court of Appeal unanimously upheld the trial judge's decision to authorize surgery, taking account of principles of family law, criminal law and human rights law. Parental duties to the viable twin were found consistent with the justification of allowing, without intending, natural death of the non-viable twin. The right to human dignity of both twins supported the justification of separation surgery. The decision did not elevate physicians’ choices over parents’, but subjected both to the law. The hospital was found entitled to bring the case to court, but not obliged; it could have declined surgery in conformity with the parents’ wishes.

The Development of Family Law in the Twentieth Century: Informed Reform or Campaigns and Compromises?

Through key texts such as Principles of Family Law and Elements of Family Law, Stephen Cretney has become one of the most highly regarded and authoritative family lawyers in the United Kingdom. In this collection of ten diverse essays Cretney turns his attention to the historical development of Family Law, with a view to formulating recommendations about the future direction of the subject. Cretney marries historical analysis with recommendations particularly well in the final chapter, 'Dividing Family Property on Death: Approaches to Reform of Intestacy.' He explains that reforms in this area have been bedevilled by lack of agreement on the principles of inheritance law. These dilemmas are mirrored in intestacy itself, which oscillates between being a safety net and a comprehensive system of inheritance. Cretney charts the two main developments of the twentieth century: first, a trend towards favouring the surviving spouse over the children; secondly, the disinheritance of remoter blood relations. But partly because of these developments and partly because of increasingly complex family relations, the rules of intestacy can occasionally generate considerable hardship. In 1952, the Intestates' Estates Act introduced what Cretney sees as the stopgap solution of extending the power to make reasonable provision for dependants to cases of intestacy. Although the Inheritance (Provision for Family and Dependants) Act 1975 widened the courts' powers further, Cretney argues that three contemporary complications have not been fully addressed. First of all, the rise in divorce and remarriage leads to cases where the deceased's wife, who will usually inherit most of his estate, will not necessarily feel any obligation to his children by previous marriages. Secondly, the rise in cohabitation leads to the situation where a child brought up by his mother and her cohabitant will have no right to inherit from his only father figure. Thirdly, new forms of wealth such as pensions do not fit neatly into the statutory scheme. In Cretney's opinion, the solutions to these complications rest in a greater measure of judicial flexibility and discretion. He proposes, first of all, that in cases

Parental Notice and Consent for Abortion: Out of Step with Family Law Principles and Policies

In 1990, the US Supreme Court in Hodgson v. Minnesota allowed a state to require, with limited exceptions, notification of both parents before a woman under 18 has an abortion, as long as the law provides a judicial bypass procedure. If the judge finds that she is mature enough to give informed consent or that notification is not in her best interest, judicial bypass permits nondisclosure to the parents. The notification requirement is contrary to many of the general principles to family law. The Minnesota statute requires physicians to notify both parents; notice to merely one parent is permissible only if the other parent is dead or cannot be located after a "reasonably diligent effort." Without the judicial bypass procedure Justice O'Connor would have invalidated the statute as unconstitutional, for conflicting with the best interests of the minor, infringing on family autonomy, and failing to foster the state's alleged goal of improving parent-child communication. We are left with a ruling that fails to protect the privacy of family decision making from government interference, fails to uphold court-ordered custody and parental decision making arrangements, fails to recognize state laws allowing minors access to medical services relating to sexual activity, and conflicts with the general rule of requiring only 1 parents' consent before a minor receives medical treatment. The parental notification law can cause serious harm, precipitating a dangerous family crisis where physical, psychological, or sexual abuse is present, and can cause delay in pursuing and abortion until it is too late to get one, causing life-long repercussions. The best interests of minors strongly argue against mandatory parental consent and notification laws.

Principles of Family Law in Papua New Guinea

Principles of Family Law in Papua New Guinea

Book reviews

Abstract Abstract Mental Health Law 2nd ed. Brenda Hoggett, Sweet & Maxwell, 1984, pp. 370, Paperback £12-95. Child Custody and Divorce. Susan Maidment. Croom Helm 1984, 324 pp. Hardback £16.95 Principles of Family Law. Fourth Edition. S. N. Cretney. Sweet & Maxwell, London 1984, pp. 1018, Paperback £19-50, Hardback £30.00.

Surrogate Mothers: Whose Baby Is It?

Advances in medical technology offer infertile couples who wish to raise children alternatives to adoption. The increasing number of surrogate mother contracts creates a myriad of legal issues surrounding the rights of the natural mother, the natural father and the child that is produced. In this Article, the Author discusses the legal issues and rights of the parties under the Constitution, the surrogate contract and family law principles. The Author proposes that courts should consider a surrogate contract as a revocable prebirth agreement which allows the natural mother to keep the child if she chooses. In addition, the Author advocates an interpretation of the statutes forbidding baby selling that would prohibit surrogate contracts in which the mother is paid a fee for the child.

Book Reviews

Abstract Abstract A Guide to the New Law of Family Proceedings in Magistrates' Courts. Brian Harris. Barry Rose, 1979, 49 pp. £3.00 Jury Trials. John Baldwin and Michael McConville. Clarendon Press, Oxford University Press, 1979, 150 pp. £4.95 The Social Worker and the Courts. David Wright. Published by Heinemann as one of their Community Care Handbooks, 1979, 94 pp. £1.75 Divorce and After. Gay Search. Anglia Television Ltd., 1979, 89pp. £1.00 Privacy. Edited by J. B. Young. Wiley, 1978. 350 pp. £12 Principles of Family Law. S. M. Cretney. Third edition. Sweet & Maxwell, 1980. 603 pp. Hardback: £19. Paperback: £14

Allocation of Child Medical Care Decision-Making Authority: A Suggested Interest Analysis

L EGAL responsibility for medical care decisions about children is shared at present by parents, children, medical practitioners, and the state. The division of authority is often prescribed by largely unrelated rules in several areas of law, including the common law of battery, family law principles of intrafamilial rights and duties, child neglect statutes, public health laws, and school codes. The result is a great deal of tension and inconsistency in the overall allocational scheme. Difficulties in the rules of each area simply multiply the overall confusion. Reform has begun, primarily in the form of state legislative changes. The law of children generally is in a state of flux, and the arrival of national health insurance may provide further impetus for a rethinking of the rules allocating child medical care decisionmaking authority. This article will review the present allocational scheme and then suggest some guidelines for reform, based on an analysis of the interests and roles of each of the four principal actors in the decisionmaking process. Although this type of interest analysis is not new to legal literature, it has played surprisingly little part in the development of the present allocational rules.