Parenting issues after separation: developments in common law countries

Authored by: Belinda Fehlberg , Bruce Smyth , Liz Trinder

Routledge Handbook of Family Law and Policy

Print publication date:  May  2014
Online publication date:  May  2014

Print ISBN: 9780415640404
eBook ISBN: 9780203796221
Adobe ISBN: 9781134447534

10.4324/9780203796221.ch3_3

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Abstract

How do we, as a diverse society, define what parenting arrangements are in a child’s ‘best interests’ (or perhaps more realistically in practice, are the ‘least detrimental alternative’) 1 if the child’s parents separate? How can that vision be fulfilled in practice and how will we know when we have achieved it? These continue to be key challenges for policy regarding parenting after separation. They are all the more complex given the emotionally and politically charged context in which they arise, ‘producing strongly held views, many based on personal experience’. 2 Of course, ensuring that law operates in children’s ‘best interests’ should be at the heart of policy in this area, but the personal impacts of family law and post-separation parenting policy mean that it is particularly difficult to clarify beyond that general principle. Unsurpisingly, the ‘best interests’ test has long been criticized for its indeterminacy, with key issues being lack of clear consensus in society about the values to be used when making a determination (including ongoing debate about how much weight should be given to parents’ interests) and the impossibility in most cases of making predictions about the future. 3 The perennial challenge, however, is to formulate a better alternative.

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