Joint Parental Authority : A comparative legal study on the continuation of joint parental authority after divorce and the breakup of a relationship in Dutch and Danish law and the CEFL principles

Abstract

This book provides a comparative legal study on the continuation of joint parental authority after divorce and the breakup of a relationship in Dutch and Danish law. In addition, the Principles regarding Parental Responsibilities which have been drafted by the Commission on European Family Law are taken into account. The book is divided into three Sections. In the first Section, Dutch and Danish law is compared and discussed in the context of the historic development in the relevant law and the influence of human rights upon this development. Furthermore the law is reviewed in the context of recent socio-legal data. Thereafter follows the second Section containing a comparison between Dutch and Danish law and the CEFL principles. This comparison takes account of the allocation of parental authority, the establishment of residence and relocation, the exercise of parental authority and finally the exercise of contact rights and related procedural perspectives. The law is then analysed and reviewed in a critical perspective in the third Section. In the analysis it is considered that the regulation of parental authority after divorce or after the breakup of a relationship may be viewed to involve a choice between different types of regulation each providing both advantages and disadvantages. This choice may concern a regulation which is deemed at securing a proper exercise of parental authority, for example, by requiring that parents agree upon joint exercise or a regulation that is aimed at securing the legal norm joint parental authority. The current discourse in both Dutch and Danish law underpinning the law on parental authority and contact is the understanding that parent-child relationships should not be affected by divorce or the breakup of a relationship. The ideal of the amicable post-divorce family and the “child’s right to two parents” have provided the main rule favouring the continuation of parental authority and a narrow exception, which point in the direction that an allocation of sole parental authority is associated with the level of the parent’s misbehaviour rather than with an assessment of the risks or benefits involved for the individual child. It is considered that the law tends to work relying upon more concrete facts such as a joint request or ascertainable misbehaviour on the part of one parent as an individual assessment of the risks involved for the individual child. The bottom-line is that the choice of a regulation form will determine the level of processes involving children in post divorce families. The price for the present type of regulation will be borne by children who come from families where the aim of promoting the amicable post-divorce family is unattainable. According to this authors view, a feasible approach which will limit the amount of processes involving children is to base the allocation of joint parental authority after divorce and after the breakup of a relationship upon the parents’ (continued) willingness to hold joint parental authority implying a return to the joint request procedure.