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Beslut om vårdnad och umgänge - när våld har förekommit i familjen

Syrén-Åkesson, Sofia (2008)
Department of Law
Abstract
When a child's parents are divorced or separated and violence has occurred between them, several problems can arise in custody cases. The purpose of this thesis is to study these problems and the possibilities to solve them. The first problem I study in this thesis is the different parties' rights which often rise in opposition to one other. These rights refers to the abused parent's right to safety and not be forced to cooperate with the person that has abused them, the child's right to have contact with the abusing parent and the abusing parent's right to have contact with their child. The thesis also studies the child's right not to have contact with a parent at all. The main problem is which parent's rights are the most important and... (More)
When a child's parents are divorced or separated and violence has occurred between them, several problems can arise in custody cases. The purpose of this thesis is to study these problems and the possibilities to solve them. The first problem I study in this thesis is the different parties' rights which often rise in opposition to one other. These rights refers to the abused parent's right to safety and not be forced to cooperate with the person that has abused them, the child's right to have contact with the abusing parent and the abusing parent's right to have contact with their child. The thesis also studies the child's right not to have contact with a parent at all. The main problem is which parent's rights are the most important and therefore which parent's rights should come first. A person's right to safety and protection from violence is according to the European convention a human right. But the starting point is always to have the child's best at interest. Guiding rules for this principle is, among other rules, a child's right to have a close and a good relationship with both its parents. At the same time, this principle or any other principle can never justify that a child gets hurt in any way. According to this, a parent should never have an unrestricted right to his or her child. The possibility to provide a child with its' essential rights can be questioned if one parent is forced to cooperate with the other parent and because of that be forced to live in constant fear. Although it is the best interest of the child that comes first, it is also very important that a person's right to safety is protected in this certain situation. A balancing of all the circumstances has to be done in every individual case. Joint custody is considered to be the best form of custody in most case today. That is why joint custody is a norm in Swedish law. When a parent has been a victim of violence, joint custody however can be a new way for the abusing parent to continue to practice power and control. When violence has occurred within the family or when lack of cooperation exists, joint custody is not always the best alternative for a child because of the prevailing demand of consensus. If joint custody, despite lack of cooperation, is considered to be in the best interest of a child there, according to my opinion, ought to be a possibility to divide the competence between the parents. Through such a legislative novelty, the current demand of consensus should not be as strict as it is today. Another aspect that is important for the court to consider is the risk that a parent is falsely accusing the other parent, just to win the legal lawsuit. At the same time, the consequences would be devastating if a parent, who really has been a victim of violence, is not trusted. It is therefore very important how these statements regarding violence is treated during a custody case. Contact between the child and the non-residential parent or the parent who doesn't have legal custody of the child, can be constructed in different ways, or totally be excluded, depending on how serious the lack of cooperation is between the parents and the threat for the child of getting hurt. A child's need of having a close and a good relationship to both its' parents is, according to research, significant for the best interest of the child. This is why contact with both parents is so valuable. In certain situations contact can be carried out in the presence of a contact person. This may also be the case when a parent lives at a secret address with a protected identity. In this specific situation the child could, unaware of the secrecy, expose the protected identity. If there on the other hand exist indications of the child being in risk of getting hurt by having contact with a parent, or if it is not in the child's best interest to pursue contact, it might not be decided by the court. The court may also come to the conclusion that contact for the moment is not in the best interest of the child, but that it could be a possibility when the child has reached a certain maturity. The contact may then be based on letters, mail and video calls. This could increase the possibility for a future working access. The starting point is always that the relationship is meant for the child and not for the parent. (Less)
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author
Syrén-Åkesson, Sofia
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Familjerätt
language
Swedish
id
1562429
date added to LUP
2010-03-08 15:55:30
date last changed
2010-03-08 15:55:30
@misc{1562429,
  abstract     = {When a child's parents are divorced or separated and violence has occurred between them, several problems can arise in custody cases. The purpose of this thesis is to study these problems and the possibilities to solve them. The first problem I study in this thesis is the different parties' rights which often rise in opposition to one other. These rights refers to the abused parent's right to safety and not be forced to cooperate with the person that has abused them, the child's right to have contact with the abusing parent and the abusing parent's right to have contact with their child. The thesis also studies the child's right not to have contact with a parent at all. The main problem is which parent's rights are the most important and therefore which parent's rights should come first. A person's right to safety and protection from violence is according to the European convention a human right. But the starting point is always to have the child's best at interest. Guiding rules for this principle is, among other rules, a child's right to have a close and a good relationship with both its parents. At the same time, this principle or any other principle can never justify that a child gets hurt in any way. According to this, a parent should never have an unrestricted right to his or her child. The possibility to provide a child with its' essential rights can be questioned if one parent is forced to cooperate with the other parent and because of that be forced to live in constant fear. Although it is the best interest of the child that comes first, it is also very important that a person's right to safety is protected in this certain situation. A balancing of all the circumstances has to be done in every individual case. Joint custody is considered to be the best form of custody in most case today. That is why joint custody is a norm in Swedish law. When a parent has been a victim of violence, joint custody however can be a new way for the abusing parent to continue to practice power and control. When violence has occurred within the family or when lack of cooperation exists, joint custody is not always the best alternative for a child because of the prevailing demand of consensus. If joint custody, despite lack of cooperation, is considered to be in the best interest of a child there, according to my opinion, ought to be a possibility to divide the competence between the parents. Through such a legislative novelty, the current demand of consensus should not be as strict as it is today. Another aspect that is important for the court to consider is the risk that a parent is falsely accusing the other parent, just to win the legal lawsuit. At the same time, the consequences would be devastating if a parent, who really has been a victim of violence, is not trusted. It is therefore very important how these statements regarding violence is treated during a custody case. Contact between the child and the non-residential parent or the parent who doesn't have legal custody of the child, can be constructed in different ways, or totally be excluded, depending on how serious the lack of cooperation is between the parents and the threat for the child of getting hurt. A child's need of having a close and a good relationship to both its' parents is, according to research, significant for the best interest of the child. This is why contact with both parents is so valuable. In certain situations contact can be carried out in the presence of a contact person. This may also be the case when a parent lives at a secret address with a protected identity. In this specific situation the child could, unaware of the secrecy, expose the protected identity. If there on the other hand exist indications of the child being in risk of getting hurt by having contact with a parent, or if it is not in the child's best interest to pursue contact, it might not be decided by the court. The court may also come to the conclusion that contact for the moment is not in the best interest of the child, but that it could be a possibility when the child has reached a certain maturity. The contact may then be based on letters, mail and video calls. This could increase the possibility for a future working access. The starting point is always that the relationship is meant for the child and not for the parent.},
  author       = {Syrén-Åkesson, Sofia},
  keyword      = {Familjerätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Beslut om vårdnad och umgänge - när våld har förekommit i familjen},
  year         = {2008},
}