Search Results

The Research

Patrick Parkinson and Judy Cashmore

in The Voice of a Child in Family Law Disputes

This chapter outlines the overall approach to the exploration of children's participation in family law disputes for this book, and the way in which this research was conducted. It also explores some ... More

This chapter outlines the overall approach to the exploration of children's participation in family law disputes for this book, and the way in which this research was conducted. It also explores some of the practical and ethical issues about doing research in this area, particularly with children. There are three main elements to the approach: it is interdisciplinary; it is mixed method (using both quantitative and qualitative data); and it draws upon the multiple perspectives of children, parents, mediators, lawyers, and judges.Less

Professional Views of Children's Participation

Patrick Parkinson and Judy Cashmore

in The Voice of a Child in Family Law Disputes

This chapter compares the views of the professionals involved in family law disputes: the mediators, counsellors, lawyers, and judges. These professionals play an important role as advisers, ... More

This chapter compares the views of the professionals involved in family law disputes: the mediators, counsellors, lawyers, and judges. These professionals play an important role as advisers, gatekeepers, and adjudicators. The advice of counsellors and lawyers may play an important role in how parents see the views of children and the participation of children. Counsellors in the courts who write family reports and lawyers who represent children in the most highly contested disputes also provide two of the more influential means of presenting children's views to the court, or not, depending on the role they play.Less

Family Law, Family Authority

William Cornish

in The Oxford History of the Laws of England: Volume XIII: 1820–1914 Fields of Development

This chapter on family law in the 19th century discusses the courts used for family disputes, private and public provision in law touching the family, the husband as patriarch, property during a ... More

This chapter on family law in the 19th century discusses the courts used for family disputes, private and public provision in law touching the family, the husband as patriarch, property during a marriage and after the death of a spouse, and male attitudes to the opposite sex.Less

Expanded Courts with Diminished Legal Norms

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter explores a contradiction in the new paradigm of family dispute resolution. The new paradigm expands the vision and role of family courts at the same time that it reduces the primacy and ... More

This chapter explores a contradiction in the new paradigm of family dispute resolution. The new paradigm expands the vision and role of family courts at the same time that it reduces the primacy and relevance of legal norms in resolving disputes about children. The result is a more powerful family court system that is less constrained by legal limits than its more traditional predecessor. While such an expanded and expansive court system may benefit children and families in need of services, it also poses substantial risks, both to the family members it serves and to the larger legal system. Many researchers have expressed a concern that reliance on informal processes and non-legal staff increases the danger that parties will leave the court system without the legal remedies they need and are entitled to under existing law.Less

Introduction

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This introductory chapter presents the organization and the rationale of the book. This book examines the late twentieth-century paradigm shift in family dispute resolution and compares it with more ... More

This introductory chapter presents the organization and the rationale of the book. This book examines the late twentieth-century paradigm shift in family dispute resolution and compares it with more recent changes in the structure and composition of today's families. Focusing on disputes among family members, it asks whether the current dispute resolution regime responds adequately to the needs of the families it aims to serve. The book then argues that while the new paradigm may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family—a model that fits poorly with the more complicated realities of today's disputing families. Moreover, the new paradigm largely fails to acknowledge that some parents and children need the protections afforded by traditional legal processes and authoritative third-party decision-making.Less

The New Vision Meets the New Family

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter focuses on recent changes in the structure and characteristics of the families who interact with the new paradigm of family dispute resolution. These changes include the decline of ... More

This chapter focuses on recent changes in the structure and characteristics of the families who interact with the new paradigm of family dispute resolution. These changes include the decline of marriage and the resulting increase in non-marital families with parenting disputes, the prevalence of stepfamilies, the increase in grandparent and other non-parental caretakers of children, the rise of gay and lesbian families, and the sharp increase in pro se parties in family court. The chapter also explores the mismatch between the complex realities of today's families and the more simplistic assumptions that underlie the new paradigm. Although the new paradigm aims to offer a new vision for the resolution of family conflict, it leaves largely unexamined the models of family and intimate relationships on which the traditional, adversary model was based. As a result, the new paradigm assumes a family structure that is both more static and more homogeneous than today's reality.Less

From Gladiators and Umpires to Problem-Solvers and Managers

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter examines the changing roles of lawyers and judges in the new family court system and the implications of these new and expanded roles for families and family dispute resolution. While ... More

This chapter examines the changing roles of lawyers and judges in the new family court system and the implications of these new and expanded roles for families and family dispute resolution. While lawyers continue to represent clients in the new paradigm, they are called on to do so in different or expanded ways. The current regime invites lawyers to assume new roles as facilitators and dispute resolution neutrals. Similarly, while judges continue to adjudicate the small percentage of family cases that go to trial, they have also taken on expanded roles as team leaders, managers, and therapeutic agents. These changes reduce the distinctions between judging and lawyering, and blur the roles of judges and attorneys; they also challenge existing ethical norms for both lawyers and judges.Less

Creating a Twenty-First-Century Family Dispute Resolution System

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This concluding chapter offers a series of recommendations designed to address the disconnection between the new paradigm and today's families, and to adjust the balance between court-based and ... More

This concluding chapter offers a series of recommendations designed to address the disconnection between the new paradigm and today's families, and to adjust the balance between court-based and community-based approaches to family dispute resolution. Twenty-first-century reformers should consider moving some of the non-adversary processes and services that characterize the new paradigm out of the court system and into the community. They should also look for ways to enhance children's participation in the non-adversarial resolution of family disputes. Moreover, today's reformers should look beyond divorcing couples and adopt processes and services that better serve the needs of never-married parents and other family structures. Finally, rather than bypassing lawyers, reformers should pursue alternative models of legal representation that can both enhance access to legal services and promote durable resolutions for families.Less

Mediation in Russia: Regulation and Practice

Dmitry Davydeko

in Mediation: Principles and Regulation in Comparative Perspective

Litigation, which is a fairly brief and inexpensive procedure, is currently a common dispute resolution technique in Russia, especially for business. Yet, in certain Russian regions mediation has ... More

Litigation, which is a fairly brief and inexpensive procedure, is currently a common dispute resolution technique in Russia, especially for business. Yet, in certain Russian regions mediation has been practiced even since the mid-1990s. The importance of mediation to harmonise social relations and reduce the courts' caseload has been recognised by the Russian state. A federal law on mediation of civil, commercial, family and some other disputes has been in force since 2011. This establishes a general regulative framework but many legal uncertainties still remain and need to be further clarified. Experience of Russian mediation providers in Saint-Petersburg, Moscow, Ural, Rostov and Sibir shows that demand for mediation mostly depends on promotional and educative activity of the mediation providers rather. However, mediation needs further legislative support and incentives and other measures to be more recognised and adopted by businesses and individuals.Less

3 Expanded Courts with Diminished Legal Norms

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter explores a contradiction in the new paradigm of family dispute resolution. The new paradigm expands the vision and role of family courts at the same time that it reduces the primacy and ... More

This chapter explores a contradiction in the new paradigm of family dispute resolution. The new paradigm expands the vision and role of family courts at the same time that it reduces the primacy and relevance of legal norms in resolving disputes about children. The result is a more powerful family court system that is less constrained by legal limits than its more traditional predecessor. While such an expanded and expansive court system may benefit children and families in need of services, it also poses substantial risks, both to the family members it serves and to the larger legal system. Many researchers have expressed a concern that reliance on informal processes and non-legal staff increases the danger that parties will leave the court system without the legal remedies they need and are entitled to under existing law. Less

4 The New Vision Meets the New Family

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter focuses on recent changes in the structure and characteristics of the families who interact with the new paradigm of family dispute resolution. These changes include the decline of ... More

This chapter focuses on recent changes in the structure and characteristics of the families who interact with the new paradigm of family dispute resolution. These changes include the decline of marriage and the resulting increase in non-marital families with parenting disputes, the prevalence of stepfamilies, the increase in grandparent and other non-parental caretakers of children, the rise of gay and lesbian families, and the sharp increase in pro se parties in family court. The chapter also explores the mismatch between the complex realities of today's families and the more simplistic assumptions that underlie the new paradigm. Although the new paradigm aims to offer a new vision for the resolution of family conflict, it leaves largely unexamined the models of family and intimate relationships on which the traditional, adversary model was based. As a result, the new paradigm assumes a family structure that is both more static and more homogeneous than today's reality. Less

7 Creating a Twenty-First-Century Family Dispute Resolution System

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This concluding chapter offers a series of recommendations designed to address the disconnection between the new paradigm and today's families, and to adjust the balance between court-based and ... More

This concluding chapter offers a series of recommendations designed to address the disconnection between the new paradigm and today's families, and to adjust the balance between court-based and community-based approaches to family dispute resolution. Twenty-first-century reformers should consider moving some of the non-adversary processes and services that characterize the new paradigm out of the court system and into the community. They should also look for ways to enhance children's participation in the non-adversarial resolution of family disputes. Moreover, today's reformers should look beyond divorcing couples and adopt processes and services that better serve the needs of never-married parents and other family structures. Finally, rather than bypassing lawyers, reformers should pursue alternative models of legal representation that can both enhance access to legal services and promote durable resolutions for families. Less

Family Reform in the Southwest Frontier, 1950–1953

in Revolutionizing the Family: Politics, Love, and Divorce in Urban and Rural China, 1949-1968

This chapter evaluates the implementation of the Marriage Law in China's southwest frontier during the period from 1950 to 1953. It shows that both Han men and women in Yunnan from various ethnic ... More

This chapter evaluates the implementation of the Marriage Law in China's southwest frontier during the period from 1950 to 1953. It shows that both Han men and women in Yunnan from various ethnic minorities very frequently petitioned state institutions to resolve their family disputes. It highlights the need to further study Yunnan's political, economic, and cultural features in light of the factors identified as conducive to pursuing new rights in government institutions.Less

5 From Gladiators and Umpires to Problem-Solvers and Managers

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter examines the changing roles of lawyers and judges in the new family court system and the implications of these new and expanded roles for families and family dispute resolution. While ... More

This chapter examines the changing roles of lawyers and judges in the new family court system and the implications of these new and expanded roles for families and family dispute resolution. While lawyers continue to represent clients in the new paradigm, they are called on to do so in different or expanded ways. The current regime invites lawyers to assume new roles as facilitators and dispute resolution neutrals. Similarly, while judges continue to adjudicate the small percentage of family cases that go to trial, they have also taken on expanded roles as team leaders, managers, and therapeutic agents. These changes reduce the distinctions between judging and lawyering, and blur the roles of judges and attorneys; they also challenge existing ethical norms for both lawyers and judges. Less

Introduction

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This introductory chapter presents the organization and the rationale of the book. This book examines the late twentieth-century paradigm shift in family dispute resolution and compares it with more ... More

This introductory chapter presents the organization and the rationale of the book. This book examines the late twentieth-century paradigm shift in family dispute resolution and compares it with more recent changes in the structure and composition of today's families. Focusing on disputes among family members, it asks whether the current dispute resolution regime responds adequately to the needs of the families it aims to serve. The book then argues that while the new paradigm may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family—a model that fits poorly with the more complicated realities of today's disputing families. Moreover, the new paradigm largely fails to acknowledge that some parents and children need the protections afforded by traditional legal processes and authoritative third-party decision-making. Less

The Influence of Comparative and International Family Law

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter analyzes how international and comparative law developments have influenced the development of the new paradigm of family dispute resolution in the United States. It focuses, in ... More

This chapter analyzes how international and comparative law developments have influenced the development of the new paradigm of family dispute resolution in the United States. It focuses, in particular, on reform efforts in Australia that have shifted family dispute resolution away from the court system and into the community, and on the implementation of the mandate of the United Nations Convention on the Rights of the Child (CRC) that children have the opportunity to participate in legal proceedings that affect them. In addition to articulating independent rights for children and imposing obligations on both state institutions and families to protect children's interests, Article 12(2) of the CRC requires that a child “be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”Less

6 The Influence of Comparative and International Family Law

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter analyzes how international and comparative law developments have influenced the development of the new paradigm of family dispute resolution in the United States. It focuses, in ... More

This chapter analyzes how international and comparative law developments have influenced the development of the new paradigm of family dispute resolution in the United States. It focuses, in particular, on reform efforts in Australia that have shifted family dispute resolution away from the court system and into the community, and on the implementation of the mandate of the United Nations Convention on the Rights of the Child (CRC) that children have the opportunity to participate in legal proceedings that affect them. In addition to articulating independent rights for children and imposing obligations on both state institutions and families to protect children's interests, Article 12(2) of the CRC requires that a child “be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” Less

The Politics and Culture of Divorce and Marriage in Urban China, 1954–1966

in Revolutionizing the Family: Politics, Love, and Divorce in Urban and Rural China, 1949-1968

This chapter examines the political and cultural aspects of marriage and divorce in urban China during the period from 1954 to 1966. It analyzes intraparty reports, memoirs, and investigations which ... More

This chapter examines the political and cultural aspects of marriage and divorce in urban China during the period from 1954 to 1966. It analyzes intraparty reports, memoirs, and investigations which reveal that many urbanites ignored or avoided the state's attempt to regiment and organize private life by aggressively seeking divorce and marriage without reference to the state's understanding of political good and evil. It investigates the extent to which motivations for marriage and divorce were shaped by political considerations and describes how marriage and family disputes were handled by state institutions.Less

Historical Overview

Jane C. Murphy and Jana B. Singer

in Divorced from Reality: Rethinking Family Dispute Resolution

This chapter traces the doctrinal and procedural antecedents of the late twentieth-century paradigm shift in family dispute resolution. Doctrinal developments in both the nineteenth and twentieth ... More

This chapter traces the doctrinal and procedural antecedents of the late twentieth-century paradigm shift in family dispute resolution. Doctrinal developments in both the nineteenth and twentieth centuries expanded and transformed the judicial role in divorce and custody disputes, ultimately making courts the primary guardians of children's welfare in the face of family breakdown. In addition, the therapeutic underpinnings of progressive-era juvenile justice reform shifted in the mid-twentieth century from the delinquency to the divorce and custody context. Finally, the shift from a fault-based, sole custody regime to a no-fault co-parenting model in the 1980s and early 1990s simultaneously undermined the efficacy of traditional adversary processes and invited ongoing court involvement in families affected by divorce and parental separation—both important elements of the new paradigm.Less