The Impact of the Best Interests of the Child on Shared Parenting and Joint Custody.

In the western legal tradition, joint custody is generally considered the optimum custody outcome when parents break up. Indeed, it is widely accepted that the involvement of both parents in the child upbringing is in the best interests of the child, even though they are living apart. But what does joint custody entail? Is joint custody implemented in the same way in Belgium, Italy, England and Wales? In whose best interests is joint custody awarded in concreto? This study examines custody law and its implementation in order to discover whether the considered national laws require different parental responsibilities to be exercised jointly; and therefore, if there might be different understandings of what is best for the child in a joint custody scenario. More specifically, it will enquire whether a tendency in favour of the marital (monist) family exists, and, in case, whether this paradigm and its power structure are forced on the post-partnering family. Because of the legal nature of this analysis, it primarily focuses on the comparison between the national statutory laws, with specific reference to Children Act 1989 and the Belgian and Italian Civil Codes, and their case law application. However, social science and psychology literature have also been taken into primary consideration, from a gender-based perspective. Quantitative and qualitative research are investigated in order to contribute to a socially informed understanding of joint custody, as a legal tool. With this comparative and interdisciplinary focus in mind, this research will first present the general principles at the basis of the national joint custody laws, namely the best interest of the child and the shared parenting principle. The current legal implementation of the shared parenting principle will be then examined, highlighting how the exercise of parental responsibilities changes in joint custody and shared custody scenarios. Building on this, the research will question the current paradigm by exploring whether some limits exist in the best interest of the child. Special attention will be paid to two elements: interparental conflict and parent-child contact. Finally, in case those limits exist, and in order to overcome them, the project will attempt to build legal arguments through the maternalistic paradigm, as an alternative to the paternalistic understanding of joint custody law.

Keywords:FAMILY LAW

Disciplines:Comparative law, Family law, Sociology of law

Project type:Collaboration project