NCJ Number
48787
Journal
Juvenile and Family Court Journal Volume: 29 Issue: 2 Dated: (MAY 1978) Pages: 21-25
Date Published
1977
Length
5 pages
Annotation
PROBLEMS THAT ARISE IN CHILD CUSTODY CASES, INCLUDING THOSE IN WHICH ONE PARENT ABDUCTS A CHILD FROM THE OTHER PARENT, ARE CONSIDERED IN A DISCUSSION OF THE RELATIONSHIPS AMONG CHILD, PARENTS, AND STATE.
Abstract
CASES ILLUSTRATING TWO BASIC APPROACHES -- THE SIMPLISTIC-SENTIMENTAL AND THE REALISTIC-RATIONAL -TAKEN BY THE COURTS IN DECIDING CHILD CUSTODY CASES ARE CITED, AND THE DANGERS INHERENT IN THE FORMER APPROACH ARE POINTED OUT. NEWER CONCEPTS EVOLVING IN THE AREA OF CUSTODY, INCLUDING THOSE DESIGNED TO END THE PRACTICE OF CHILD-SNATCHING BY PARENTS INVOLVED IN CUSTODY DISPUTES, ARE NOTED. ONE CONCEPT, YET TO BE TESTED IN CUSTODY CASES, HAS TO DO WITH REJECTION OF 'SELF-HELP' AS THE ULTIMATE AUTHORITY. BY STATUTE AND JUDICIAL DECISION, THE RIGHT TO USE FORCE TO RESIST ANY ENCROACHMENT UPON THE LIBERTIES OF THE PERSON (ESPECIALLY THE RIGHT TO RESIST ARREST) IS BEING ELIMINATED. MODEL LEGISLATION ELIMINATING SELF-HELP AS JUSTIFICATION FOR THE USE OF FORCE AND VIOLENCE IN CHILD CUSTODY DISPUTES IS AVAILABLE. A SECOND APPROACH IS ENBODIED IN A BILL BEFORE THE FLORIDA LEGISLATURE THAT WOULD MAKE PARENTS WHO ABDUCT THEIR OWN CHILDREN NO LONGER EXEMPT FROM THE FEDERAL KIDNAPPING STATUTES. A CONCEPT EMERGING IN THE AREA OF FAMILY LAW -- RESTRICTIONS ON THE CONDUCT OF LAWYERS REPRESENTING PARTIES IN DIVORCE AND CHILD CUSTODY CASES -- IS NOTED AS A RESPONSE TO THE PROBLEM OF PERSUADING LAWYERS TO BEHAVE PROPERLY IN NONADVERSARY PROCEEDINGS. JUVENILE COURT JUDGES ARE URGED TO LOOK BEYOND INDIVIDUAL CASES TO A BROADER VIEW OF THE RELATIONSHIPS AMONG CHILD, PARENT, AND STATE AND TO COMMUNICATE THAT VIEW TO THE LEGISLATURES AND THE APPELLATE COURTS SO THAT THEY WILL ABANDON THEIR FRAGMENTARY APPROACH TO JUVENILE COURT LAW. (LKM)