civil

1. When a couple divorces, the court shall determine the burden of exercising the rights and obligations of minor children based on the provisions of Articles 1055 and 1056 of the Civil Code based on the "best interests of the children." However, what is the principle of the best interests of minor children? Uncertain legal concepts would leave too much room for interpretation and leave it to judges’ subjective value judgments. Therefore, the Ministry of Justice invited scholars, experts, the Judicial Yuan, and the Ministry of Health and Welfare’s Social and Family Affairs Bureau to hold a deliberation meeting on December 18, 102, and proposed The relevant reference principles are briefly described as follows:

 (1) Factors regarding children

   1. Connotation: The judgment focuses on the children’s future physical and mental development. Article 1055-1, paragraph 1, “age, gender, number and health of the children”, paragraph 2, “children’s wishes and personality development needs” It belongs to it.

   2. Judgment principles:

     (1) Age of the child: The principle of mother priority (principle of infants following mother): When the child is an infant, common sense holds that infants are more in need of maternal care. Therefore, in the case of infants and infants, unless there are special circumstances, the mother is usually given priority. Pro-authority person.

     (2) Children's wishes: The principle of respecting children's wishes. If minor children have grown to a certain age, they need to listen to their opinions and let the children express their wishes.

     (3) Children's adaptation: The principle of continuity of care (the principle of maintaining the status quo). Psychological research shows that frequent changes in the living environment or parents and guardians will put minor children in an unstable state, thus causing their excessive stress. Mentally greedy. In order for children to grow up healthily, it is necessary for the care relationship between parents or guardians and minor children to maintain uninterrupted continuity. Therefore, attention should be paid to the past care status of minor children, and the emotional connection between parents and children in the psychology of minor children should be considered. Generally, The parent of the minor child shall be determined based on respect for the current situation of the minor child.

     (4) Number of children: The principle of sibling non-separation (the principle of non-separation of siblings). When there are several young children, in judicial practice, brothers and sisters should be placed under the same parental authority as much as possible, so that siblings can live together. And it is beneficial to its healthy growth.

 (2) Comparison of various factors between husband and wife

   1. Connotation: Mainly to compare which of the spouses is more qualified as the person with parental authority; Civil Code Article 1055-1, Paragraph 3 "Parents' age, occupation, conduct, health, financial ability and living conditions", Article Paragraph 4 "Parents' Willingness and Attitude to Protect and Raise Their Children" and Paragraph 5 "The emotional state between parents and children or between minor children and other people living together." belong to this category.

   2. Judgment Principle: Comparison and Measurement Principle of Parental Suitability

     (1) Body and personality: including comparing the couple’s age, personality, character, attitude towards life, health status, etc.

     (2) Economic ability: including assets, income, occupation, living conditions, living environment, parenting ability, care assistants and the presence of other support systems, etc.

     (3) Psychological status: degree of affection and love for children, willingness and attitude to protect and educate children, understanding of meetings and interactions with non-parental persons, etc.

   3. Practical judgment standards:

     (1) Assessment of guardianship intention and guardianship motivation: Whether the intention and guardianship motivation are positive purposes, etc.

     (2) Assessment of guardianship ability and support system: financial ability, care ability, parenting ability, parenting ability, care experience, parent-child interaction, understanding of the child's life and physical and mental conditions, and the emotional support system of other family members, etc.

     (3) Assessment of the ward’s wishes and care situation: home environment, care situation, interaction with family members, and future care plans, etc.

 (3) Regarding the protection and upbringing of children

   1. Connotation: It is based on the past record of protecting and educating children, and evaluating whether one is suitable for the role of protecting and educating children in the future.

   2. Judgment principles:

     (1) Child care record: The principle of primary caregiver (principle of primary caregiver) determines who bears the responsibility for the care of children during the marriage, or when the couple does not live together. In addition to the provision of money, it is mainly based on past protection and upbringing. The record of the child and the time spent participating in the child's growth; for example: accompanying the child to medical treatment, participating in parent-teacher discussions (or parent-child days) at school, understanding of the child's teachers or friends, understanding of the child's learning status, etc.

     (2) Evaluate who is most suitable for the role of protective parenting: the principle of benevolent parenting. The connotation of the principle of benevolent parenting can be divided into "positive connotation" and "negative connotation":

        A.Positive connotation

          It refers to the "support cost burden plan" or "meeting and interaction promotion plan" proposed by the court for the child, etc., to evaluate which parent is more bona fide and use it as the basis for determining the ownership of parental rights. For example, if a person who wants to fight for parental rights is willing to bear more support expenses and can ensure its performance, or release more opportunities for meeting and interacting with other parties who do not have parental rights (also known as the "tolerant principle of meeting and interacting"), they will Be recognized as a well-intentioned parent. In this case, the focus of parental discretion can once again shift to the interests of the children themselves, rather than considering equality and fairness between parents, and guide the mentality of both parents from confrontation and conflict to mutual assistance and cooperation, so as to jointly ensure the best interests of their children. The goal of good interests.

        B. Negative connotation

          In the case of parental discretion or modification, the parent has concealed the child, abducted the child out of the country, failed to inform the minor child's whereabouts, falsely stated that he or she is the primary caregiver, instilled inappropriate ideas in the child, or maliciously slandered others to influence the child's wishes. . Anyone who improperly obstructs the social worker's visit, obstructs the family investigation officer's investigation, or improperly affects the judge's judgment shall be presumed to be unfit to assume parental authority.

2. In summary, with the increasing number of divorce cases, custody decisions have become increasingly important. How to concretize the concept of "the best interests of the children" and implement it into a standard that the court can specifically operate to ensure the healthy growth of minor children and implement it? It is an urgent task. When making a decision, the court should consider all circumstances. In addition to referring to the social worker's visit report, it should also consider (1) the age, gender, number and health of the children; (2) the children's wishes and personality development needs; (3) The age, occupation, conduct, health, financial ability and living conditions of parents; (4) Parents’ willingness and attitude to protect and educate their children; (5) The emotional state between parents and children or between minor children and other people living together etc. (see Civil Code Article 1055-1), and the viewpoints in various fields including sociology, psychology, etc. proposed in the previous advisory opinions of the Ministry of Justice should be considered to correctly evaluate the appropriate guardian for minor children. It is expected that through a large number of practical operations, the standards of "the best interests of the children" can be standardized, and practitioners and experts and scholars are regularly invited to jointly review the applicable judgment standards and make adjustments and modifications, so that the protection of minors can be effectively implemented. Legislative intent for sound development.