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Increasing the emphasis on the child in the resolution of custody disputes Strickland, Steven Andrew

Abstract

The problem which is confronted in this paper is a perennial one; the resolution of child custody disputes. However, it is not the aim of the paper to provide a quick and easy solution, even if such were possible. Instead, it is contended that a much more satisfactory result can be achieved if there is more emphasis placed on the person who is the most affected by a court's decision, namely, the child himself. A detailed examination of the principles used in the traditional method of determining child placement indicates that there is a decided lack of input from the child. Unfortunately, the blame can be laid at the feet of not only the courts and the lawyers, but also legislatures and the public generally. Traditional methods of adjudication are employed without an appreciation of the special nature of the problem at hand. Fortunately though, the solution is not far away, and it is the major contention of this paper that a more effective use of the methods and proceedings already at our disposal will provide the input necessary to inform a decision on this most difficult of issues. The methods of providing input from the child can be divided into two categories. There can be either direct or indirect input. The former category comprises evidence from the child and interviews by the judge, while the latter consists of independent representation by legal counsel and the utilisation of behavioural scientists. These methods are examined in great depth, and guidelines are suggested, as well as pitfalls identified. Finally, as a concession to those who would chance the system of child placement entirely, this paper looks at suggested alternatives, but concludes that there is in fact no better system than one involving adjudication by a court, as long as the same becomes less parent orientated and more child orientated.

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