law (custody) question
bru...@bullhead.uucp
"law" exists which "forces" representation for a minor in a custody dispute.
His signature suggests that he's in Israel.
William Shulman <wxsh...@CRDEC2.APGEA.ARMY.MIL> writes "the child's legal
representative is the court", and John W Meyer <j...@wdl76.wdl.fac.com> replies
mentioning guardian ad litem.
#ifdef two_cents
Mr. Eran is asking a comparative international law question, which has two
aspects: one (the obvious one) which he asked, and two (which he may not
know about), if there is such a jurisdiction, are both the jurisdiction where
the issue is being litigated (questioned) and the original jurisdiction where
the original order (appointing seperate counsel for the minor) governed by the
Hague Convention on International Child Abduction and related issues, such as
child support. Where the two jurisdictions are the same, enforcement of the
order establishing seperate representation for the minor does not arise. In
the case where the order was obtained in one jurisdiction and enforcement is
sought in another, both nation states must have deposited the instrument of
ratification of the Hague convention for enforcement to be "automatic".
The question does not arise in all countries uniformly. Some have automatic
custody preferences similar to the (US offically depricated) "tender years"
preumption rather than some policy of determining the "best interests" of
the child. Some have active courts (fact determining, e.g. France) rather
than inactive courts (fact adjudicating, e.g., the US), and the role of the
court in custody determination is the single most important question in
determining the court's determination of the minor's legal standing.
I only know something of Belgian/French and US family law, for personal
reasons, and my references are at home -- I'm at work, but I'll try and
be helpful -- and cross-post to misc.kids since this is a kid's issue.
The US is the largest per-capita producer of the dubious social product
known as litigated child custody disputes, so it has some relevance to
an Israelie, but everything varies for local rules.
In California in family court (not juvenile where vastly differenct rules
exist), either parent may move that the court appoint counsel for the minor.
In practical terms, this means that a relatively junior family law practitioner
will represent the child. Since family courts throughout the US are directed
to determine what is "in the best interests of the child", they have the
latitude to make such an appointment without a parent making a motion to
appoint an ad litem guardian.
I suggest that you look in your local law library under family law, when I
was at Stanford's last month I saw a nice comparative work on divorces within
the EEC -- sorry, no citation. Then look in the international/comparative
section, most of the work will be pre-Hague, but what I think you are looking
for is an expression of whether the court's philosophy is "parens patrie"
or something else -- again, theories of the state's role vary with each
nation state. In the US there have been two contending theories, I won't
detail each -- think of many large books and you'll have an idea of the
legal writings on this one issue. Simplistically, is the state always there,
sort of a permanent parent, or is the state a parent of last resort, there
only after it appears that the parents have failed their duties, however
these are formally and culturally defined. If the former, then seperate
standing, or rather, standing as Mr. Shulman mentioned, is likely. If the
latter, then the issue is problematic -- in the US this is "solved" by the
"best interests" doctrine.
There are journals on comparative international family law, and you can also
hit on the various on-line legal bibliographies/current decisions such as
Lexis or West Law (US). Finally, you can write to Brussels and ask some EEC
lawyer for pointers to the EEC literature.
#endif two_cents
If anyone has better info let the original poster know in Israel.
#include <std/disclaimer.h>
Eric Brunner, Consultant, IBM AWD Palo Alto (415) 855-4486
inet: bru...@monet.berkeley.edu uucp: uunet!ibmsupt!brunner
trying to understand multiprocessing is like having bees live inside your head.