子女의 最善의 利益과 面接交涉權

• 영문명: The Best Interests of the Child and Visitation Rights
• 발행기관: 한국가족법학회
• 저자명: 김수정(Soo-Jeong Kim)
• 간행물 정보: 『가족법연구』가족법연구 제19권 1호, 309~347쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.03.01

영문 초록

In deciding visitation dispute, the best interests of the child becomes the primary principle. This Article will consider the relationship between visitation rights and the best interests of the child. The first point is to survey how the Best Interests expand the visitation rights. The second point is to examine if the Best Interests standard should be sole criteria for deciding visitation and on whom the evidentiary burden should rest. If the Best Interests standard is applied to visitation dispute, interested third parties who are not the divorced parents also can file for visitation. There are diverse relationship which child has interests to maintain, and the relationship is not limited to that between legitimate child and his parents. Granting visitation right to unwed father, whose legal status approaches to that of divorced father, is a recent trend. But in the case of grandparent's access, German Civil Code and Children Act 1989(England) treat grandparent as third party, meanwhile in French Civil Code, grandparent has the same right of access as that of parent. Under the common law the stepparent-stepchild relationship does not itself give rise to any legal rights or obligations, but if visitation is in the best interests of the child stepparent can also petition for visitation now. The Best Interests principle should be paramount principle, but not the only criteria for deciding visitation disputes. If the best interests standard be the sole criteria, it does yield unjust and inefficient decisions. First, it is liable to yield unjust decisions by neglecting the rights and needs of the parents and third parties. And it yields inefficient decisions if the cost created by restriction on access to the child is substantially greater than the benefit for the child. Second, if a court enters a decree granting visitation of non-custodial person, limitation on the rights of custodial parent is not so great as in the case of custody dispute, therefore it is easier balancing the colliding interests in visitation disputes. In case that petitioner is non-custodial parent, the evidentiary burden should be placed on the custodial parent since parent has the constitutional right to rear and have access to his or her child. In case that petitioner is a third party, for example stepparent, the burden should be on the third party. Whether the burden places on grandparent or on custodial parent depends on grandparent's status in the nuclear family.

목차

Ⅰ. 序論

Ⅱ. 面接交涉權者의 範圍와 子女의 最善의 利益

Ⅲ. 面接交涉의 決定基準과 子女의 最善의 利益

Ⅳ. 結論

참고문헌

Abstract