Research on Parent-Child Law

Author: Wang Liping
Publisher:
Publishing Date: 2004-12-01
Features: Parent-child relationships are the core of family relationships. Parents and children have a direct and closest blood relationship, and the adjustment of parent-child relationships cannot be separated from the means of law. Parental law is one of the important contents of family law. This article primarily adopts the comparative legal research method, based on the reality of our country, and explores how to revise, supplement, and improve the existing legal provisions from the perspective of institutional improvement, thereby laying a theoretical foundation for the formulation of the Civil Code · Family Code of our country. This thesis is divided into 8 chapters.
Chapter 1: The Historical Development of Parent-Child Relationships. By reviewing the historical evolution of parental law, it analyzes the connotations of "family-based parental law," "parent-based parental law," and "child-based parental law," and explores the development trend of parental law. Especially by studying the provisions of parental relationships in ancient Roman law and ancient Chinese law, and by elaborating on the parental law systems in the modern French Civil Code, German Civil Code, Japanese Civil Code, and Taiwan Civil Code, as well as their revisions in the second half of the 20th century, it concludes that the legislative basis of parental law has shifted from emphasizing the power of parents to control and dominate their families, to recognizing the civil capacity of minor children, but still focuses on the rights and obligations of parents (especially fathers) over children and children's obedience to parents, and then to emphasizing the rights, obligations, and responsibilities of both parents for children, emphasizing children's rights in the family, and the principle of the best interests of the child. Currently, countries around the world are gradually placing the legislative basis of parental law on minor children, focusing on the duties and responsibilities of parents towards minor children, and stipulating that minor children are respected in the family and enjoy various rights. In the future Civil Code · Family Code of our country, the basic concepts and purposes of parental law should also be centered on the best interests of the child, emphasizing the protection and education of minor children, and emphasizing the rights, obligations, and responsibilities of parents.
Chapter 2: Determination and Types of Parent-Child Relationships. This primarily discusses how to determine the relationship between parents and children and the types of parent-child relationships. This is a basic issue in parental law and the premise for the occurrence of rights and obligations between parents and children. Generally, the parent-child relationship between mothers and children can be determined based on the objective facts of the child's birth; while the determination of father-child relationships is relatively complex. Most countries in the world adopt a presumption system, which presumes that children born during the continuation of a marital relationship are legitimate children. However, the presumption of legitimacy is only a legal presumption and may not conform to objective facts. Therefore, civil codes in various countries have also stipulated a denial system, where the person with the right to deny has the right to deny their parent-child relationship with the child within a certain period. For situations where the presumption system cannot be applied to determine parent-child relationships, civil codes in various countries have also stipulated supplementary systems such as adoption and acknowledgment. The initial basis of the adoption and acknowledgment systems was the objective fact that children were divided into legitimate children and illegitimate children, and illegitimate children were discriminated against. To improve the unfavorable position of illegitimate children, countries have established adoption and acknowledgment systems to allow illegitimate children to obtain the status and rights of legitimate children. Modern adoption systems have completely broken through the connotations of traditional adoption systems, focusing entirely on the interests of minors, so that minors can find their biological parents, receive the care and good upbringing of their biological parents. At the same time, many countries' civil codes have abolished the adoption system, such as Germany, Ethiopia, and the Macau region. Through research, the author believes that there is no need to stipulate the adoption system in the future Civil Code · Family Code of our country. Due to the absence of provisions on the presumption, denial, and adoption systems for parent-child relationships in the current Marriage Law of our country, it is recommended to supplement them when formulating the Civil Code · Family Code. In addition, regarding the types of parent-child relationships, the current legal classification of legitimate children and illegitimate children should be abandoned, and children should be divided into parents and biological children, stepparents and stepchildren, adoptive parents and adopted children, and parents and children born through artificial reproduction, in order to thoroughly protect the interests of children born outside of marital relationships.
Chapter 3: The Rights of Minor Children in the Family. Minors are independent legal subjects, possess civil capacity, have an independent legal status in the family, and are not subordinate to anyone (including parents). From the moment they are born, minors enjoy basic human rights as human beings, and their dignity cannot be violated. They have the right to be respected, the right to life and health, and other rights. In the family, they also enjoy a series of rights stipulated by law, such as the right to be supported, the right to live in the family, the right to education, the right to be protected, the right to interact with parents and other relatives, the right to express opinions, and property rights, etc. Of course, children also have certain obligations in the family, such as respecting parents, helping and caring for parents, and performing household chores appropriate to their age and physical strength.
Chapter 4: Parents' Financial Support Obligations for Minor Children. The financial support of parents for minor children has its biological and sociological basis. For minor children, they have the right to demand financial support from parents. Parents' support obligations include the obligation to provide financial support and the obligation to take care of daily life. The current Marriage Law of our country has provisions on parents' support obligations for minor children. Through comparative research, it is believed that some provisions of other countries are worth learning from. For example, the German Civil Code stipulates the obligation of support obligors to disclose their income and property status, meaning that based on the necessity of supporting minor children, every two years, parents have the obligation to inform each other of their income and property status upon request; another example is the United States provisions on the minimum standard for support, the method of calculating support, and the compulsory enforcement system for support. The compulsory enforcement system for support in the United States makes child support payments "like death and taxes" automatic and inescapable, which has unique value.
Chapter 5: Parents' Custody Rights. Parents have the obligation and right to take care of, educate, and protect minor children in terms of both their physical and property aspects. Parents' custody rights arise from their identity and are directly stipulated by law, beginning with the birth of the child. They are a duty and right of parents for minor children, aimed at protecting the child's interests, and are a selfless right. Parents' custody rights are specific and contain obligations, and parents cannot abandon or renounce them. Parents' custody rights include both physical custody rights and property custody rights. Physical custody rights include the right to determine the child's name, the right to determine the place of residence, the right to education, the right to consent to the child's occupation, the right of legal representation, the right to decide on daily matters, the right to reclaim the child, and the right to visit. Property custody rights include the right to manage the property of minor children, the right to use the property and income of minor children, and under certain conditions, the right to dispose of the property of minor children. Parents' custody rights belong to both parents, and they are exercised jointly by parents, in accordance with the principle of the child's interests. When parents have differing opinions, they should reach a consensus before exercising custody rights. When parents cannot reach a consensus on a major issue concerning a minor child, either party has the right to request a court ruling. When the child reaches a certain age, the exercise of parents' custody rights should respect the child's opinion, especially in the decision-making of major issues such as education and career permits, the talents, interests, and aspirations of the minor child should be considered, and the child should be given full freedom to express their wishes. Parents' custody rights cannot be abused, and under legally stipulated circumstances, they should be deprived or restricted. The current Marriage Law of our country does not include the term "parents' custody rights," and the provisions on the rights and obligations of parents for minor children are very general. It is recommended to make clear provisions on the content, exercise principles, deprivation and restriction of parents' custody rights, restoration of parents' custody rights, and termination of parents' custody rights when formulating the Civil Code · Family Code in the future.
Chapter 6: Parent-Child Relationships After Divorce. After divorce, custody rights are either exercised by one parent alone or jointly by both parents. Based on the national conditions of our country, for the benefit of minor children, as long as both parents agree and joint exercise of custody rights is beneficial to the healthy growth of children, both parents should jointly exercise custody rights. This chapter also introduces the United States post-divorce child custody system. The United States law and case law on joint custody, the presumption of the best interests of the child, the influence of parents' behavior on custody decisions, and the factors to consider when both parents are suitable for custody have reference value. This chapter also discusses the issue of post-divorce visitation rights, studying the nature of visitation rights, the scope of visitation right holders, the exercise of visitation rights, restrictions, and implementation. Visitation and face-to-face communication, on the one hand, are beneficial for parents to continue their emotional and responsibilities towards children; on the other hand, they can also alleviate the psychological and spiritual trauma that divorce brings to children, provide them with a better living environment, and as far as possible allow children to grow up under the joint care of both parents. However, visitation rights are both a self-interested right and a right for the benefit of others, and their exercise must be beneficial to the physical, psychological, and personality development of children. When the visitation right holder severely harms the interests of minor children, visitation rights should be suspended. Of course, when the reasons for suspending visitation rights are eliminated, visitation rights can be restored upon application by the parties. The suspension of visitation rights does not affect the visitation right holder's obligation to pay support.
Chapter 7: Parent-Child Relationships in Same-Sex Families. This chapter provides an overview of the legal provisions in various countries and primarily introduces the parent-child relationships in same-sex families in the United States. Same-sex families are non-traditional families, and some countries in the world recognize same-sex marriage, while others do not. Regardless of whether same-sex marriage is recognized, same-sex families are objectively existing, and the parent-child relationships within them cannot be ignored. The interests of minor children in same-sex families need to be protected, and the rights of parents who are homosexual also need to be protected. In the United States, the formation of parent-child relationships in same-sex families has two situations: one is the transformation from a traditional family to a same-sex family, that is, the child is born in a traditional family relationship; the other is the newly formed parent-child relationship in a same-sex family, that is, homosexuals give birth to children through artificial reproductive technology. This chapter explores whether same-sex parents are suitable as children's guardians, whether living with homosexuals is in the best interests of the child, and the issue of visitation rights for homosexual parents. Courts should comprehensively consider various factors when deciding on child custody and visitation rights, to measure whether they are in line with the best interests of the child, and should not overemphasize the sexual orientation of parents, nor cancel the educational, protective rights, and visitation rights of parents solely because they are homosexual. During the revision process of the Marriage Law in our country, there was a debate about "same-sex marriage," and issues of same-sex marriage and same-sex families have begun to attract attention from the academic community in our country. However, the parent-child relationships in same-sex families, whether same-sex families are beneficial for children's growth, whether the sexual orientation of homosexuals is an automatic disqualification for the suitability of parents to educate and protect children, whether homosexual parents have visitation rights, and whether they have the right to interact with children, have not yet been deeply explored by the theoretical community. This is also the purpose and value of this chapter.
Chapter 8: Reflections on Improving China's Parental Law. Based on the analysis of the current provisions and their defects, specific suggestions for provisions in the Civil Code · Family Code for parental law in our country are proposed. The current Marriage Law of our country has provisions on parents' support, education, and protection of children, but they are too general and lack operability, systematization, and logic, and lack many necessary provisions in the parent-child relationship determination and the parent custody rights system. Overall, the rights of minor children in the family, as well as the duties and rights of parents for minor children, are not fully reflected in the Marriage Law. The current Marriage Law has historical limitations, is incomplete in terms of system, and lacks several necessary legal systems (such as the presumption and denial of parent-child relationships, the adoption system, etc.), still retains the outdated classification of legitimate and illegitimate children, and has not improved the parent custody rights system, etc. These are the aspects that should be corrected and improved when formulating the Civil Code · Family Code in the future. Based on the comparative study of foreign legislative examples and rooted in the reality of China, specific suggestions for provisions in the future Civil Code · Family Code for parental law are proposed, in order to contribute a small part to the formulation of the Civil Code by scholars.