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9 - Adjudication for the Enduring Family

Published online by Cambridge University Press:  01 March 2011

Patrick Parkinson
Patrick Parkinson
Affiliation:
University of Sydney
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Summary

The transformation of the meaning of divorce from the old idea that the family is at an end to the acceptance of ongoing linkages between parents has profound implications not only for the substance of the law but also for legal processes. Just as hospitals have quite different functions depending on whether their role is to preserve life or to assist the family following the death of a loved one, so the family law system has also had to change profoundly – or needs to do so still.

NEW APPROACHES TO ADJUDICATION

Parenting disputes range enormously in their intensity and in what is at stake. Traditional models of adjudication in family courts were built around the typical custody dispute in which both parents were seeking the primary care of the children, relegating the other parent to the role of the visitor. This reflected the assumptions of the substitution model of the family. American scholar Andrew Schepard describes well the nature of the court's role in the substitution model. He writes that:

courts conceived of a custody dispute much like a will contest. The parents' marriage, like the decedent, was dead. Parents, like the heirs, were in dispute about the distribution of one of the assets of the estate – their children … The goal of the proceeding was a one time determination of custody “rights” which created “stability” for the future management of the asset.

Type
Chapter
Information
Family Law and the Indissolubility of Parenthood , pp. 197 - 208
Publisher: Cambridge University Press
Print publication year: 2011

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