Friday, October 21, 2011
Heneghan: "Relocation Cases - the Rhetoric and the Reality of a Child's Best Interests - a View from the Bottom of the World"
Mark Heneghan (Univ. of Otago) has posted "Relocation Cases - the Rhetoric and the Reality of a Child's Best Interests - a View from the Bottom of the World" (23 Child and Family Law Quarterly 155 (2011)) on SSRN. Here is the abstract:
Relocation cases have become a very significant aspect of family law. This article examines the difficulties in deciding (and predicting the outcomes of) national and international relocation cases. The article questions the usefulness of using checklists of non-prioritised, non-exhaustive factors to decide relocation cases based on the uncertainty such general checklists create for litigants and their children. This inevitably leads to increased litigation and appeals until the litigant finds a judge who will see the facts the litigant’s way.
The article seeks to find a more principled way to decide relocation cases that would enable litigants to be given a realistic assessment of their likelihood of success at the outset. The article examines social science research for potential answers, but finds that there is no clear social science basis to support a policy either for or against relocation. The article discusses different theoretical frameworks, and argues that power between parents in relation to relocation should be allocated on the basis of actual responsibility for children. The article ultimately concludes by suggesting a prioritised ‘discipline’ for the values that need to be considered in relocation disputes. This discipline attempts to provide a visible framework for litigants, lawyers and judges to follow, which is designed to enhance consistency and predictability in decision making, and to give real meaning to the welfare principle.