Mon, Aug 01, 2011 - Page 8 News List

Custody criteria must be updated

By Chi Hui-jung 紀惠容

King Solomon was renowned for his wisdom. In one story he was presented with two women, both claiming that a certain child was theirs. Solomon ruled that the child in question should be cut in half, each half going to one woman. One agreed, the other immediately renounced her claim to the child, saying she would rather lose the child than see it cut in half. Hearing this, Solomon ordered that the child be given to the second woman, knowing the real mother would never have agreed for the child to be sacrificed in this way.

Solomon’s verdict showed wisdom and judgment. By contrast, judges in Taiwan ruling on child custody cases, ostensibly working in the best interests of the child in line with Article 1055-1 of the Civil Code, slavishly follow the principle of continuity, awarding custody to the parent who had originally filed for divorce, usually the father. This is a blow for the distraught mother.

Don’t the judges in this country realize the principle of continuity is outdated?

Since 2001, the Garden of Hope Foundation has helped more than 38,000 abused women. Our experience shows that the principle of continuity shuts women out, and tells them to give up at the first hurdle.

The basic idea behind the principle of continuity, that in the absence of any conspicuous evidence that either parent is unsuitable, and if the child is comfortable with the current circumstances and parent he or she is with, then there is no need to make any changes, is sound.

In practice, however, the foundation has discovered that the principle encourages parents to use violence to take the child, and those who act first generally win. The court is not interested in the circumstances preceding a case, and neither does it try to ascertain who had previously been the primary caregiver.

What often happens is that domestic violence obliges a woman to leave home without her children. Since judges are only concerned with the children’s current circumstances, they will not look further into the matter, and rule in line with the principle of continuity. The children are left motherless as a result.

Such behavior could almost be seen as tantamount to kidnapping. Unfortunately, since the court follows the principle of continuity, it tends to give the custody of children to their father. Together with the figures for divorce by consent in this country, child custody is awarded to the father in 61 percent of cases.

In addition, judges tend to cover for one another out of professional loyalty. As a result, appeal for mothers exists in name only. Since child custody cases are considered to be “non-contentious,” any appeal is to be handled by the same district court as the hearing of first instance, in line with stipulations in the Non-Contentious Case Act (非訟事件法). As a result, many judges are reluctant to reverse their colleagues’ previous rulings.

The workplace ethics that the court emphasizes only protect the judges themselves. The foundation’s experience is that not only is the appeal dealt with in the same district court as the original case, but that it sometimes comes up before exactly the same judge. Of course, the appeal verdict is quite predictable.

When a woman suffers from domestic violence, she often consents to a divorce as soon as possible to escape. However, the judges, when reviewing child custody cases, do not require social workers to include in their custody evaluation reports the psychological damage done to children who have witnessed domestic violence. As the children themselves had not been beaten, the judges disregard the anxiety felt by the child who had witnessed the violence, or the fact that this might put a distance between the child and his or her father.

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