The best interest of the child in care and custody disputes : a prejudice to the father's rights?

Abstract

The present work is a study on the highly contentious issue of the assignment of children’s care and custody in judicial proceedings. An examination of the sections of the civil code dealing with ‘care and custody’ reveals that, whatever the stage of the proceedings, the focus of Maltese law and the respective courts is not the interests of the parents but rather the best interest of the child. Prima facie, the law is neutral without any bias in favour of any parent. However, it appears that non-custodial parents are overwhelmingly men, leading to the perception that disputes over care and custody are ultimately reduced to ‘gender wars’. Indeed, this term paper endeavours to determine whether this overarching principle of ‘the best interest of the child’ prejudices the father’s rights. Some of the instances identified include the non-cessation of the father’s obligation to provide maintenance even if he happens to be the non-custodial parent and the loss of the noncustodial father’s right to reside in the matrimonial home due to the court’s reluctance to remove the child therefrom. In the past, the courts were reluctant to award sole custody to the father. The dominant belief was that the mother was the most suitable parent to have custody of the minor children. This norm, commonly known as the ‘Tender Years Doctrine’ was eventually superseded by ‘The Best Interest of the Child’ doctrine. This study found that nowadays child custody norms are significantly changing. Parliamentary debates and the courts are increasingly recognising the importance of the father’s presence in the children’s upbringing especially following family breakdown. In the past decade or so, sole custody orders in favour of the mother have decreased considerably. A major limestone has been reached; courts are preferring joint care and custody orders over sole custody orders where parents cooperate with each other. Yet, even in joint custody orders, the tendency is that children live with the mother and access rights are granted to the father. The present writer concludes that even though the best interest of the children does in certain instances conflict with those of the father, the well-being of the children should come first. After all, children should not be treated as ‘pawns’ and their protection should be given priority, no matter whose interests are prejudiced in the process.