Custody decisions in social and cultural contexts: The best interests of the child standard and judges' custody decisions in Taiwan (China).

摘要

In 1996, Taiwan adopted the best interests of the child standard to substitute for the presumption of paternal custody. This dissertation is an empirical and descriptive study of how Taiwan's judges explain and apply the new law. The hypothesis is that cultural and social circumstances may significantly influence judges' explanations of what is best for the child. In order to verify the hypothesis, this study adopts both quantitative and qualitative methods. A sample of ninety-seven cases of an urban district court and a rural district court were collected and analyzed. Meanwhile, nineteen judges having determined custody cases were interviewed. The findings attest that Taiwan's court decisions of child custody cases actually reflect many cultural ideas, such as stereotyped gender roles, family autonomy, a sense of “face,” all-or-none custody, and the tradition of parents' financial support for their children. The varying socio-economic climate of Taiwan across districts and the lack of public welfare programs also clearly affect judges' custody decisions. Moreover, this study finds that since 1996, custody has been overwhelmingly awarded to mothers, whereas before 1996 fathers were favored by the courts. This change of court preference was not only caused by the gender-neutral standard and the influence of the women's movement, but it was also caused by the influence of the traditional ideas and social customs, especially the stereotyped gender roles, on judges. Judges prefer the “all-or-none custody” arrangement in which they almost never award child support, an arrangement that imposes a double burden on single mothers and further worsens the economic status of divorced single-mother families. Both the child's best interests and gender equality are undermined by this decision pattern. Research results show that when the new law meets judges with old skills, old resources, and old schemas, the new law existing in books can make only limited changes. Judges may still resort to their old beliefs, old knowledge, and old habits to explain and apply the new law. This study argues that both public welfare programs and private child support from the non-custodial parent should be implemented to assist the divorced single-parent families.