Custody rights of spouses and children in marital breakdown : Maltese Civil Law and Private International perspectives

Abstract

Marriage breakdowns are ever-increasing. Parents who feel that their marriage has failed or has reached an irreconcilable stage are contemplating separation and divorce more than ever before. As a result, custody disputes are coming to the fore. Children's lives are put at stake. The protective shield around children is shattered by parental conflict and the child's welfare risks being adversely affected. The present legal system does not alleviate the hardships that parents and children have to face in parental conflicts. The determination of child custody is an unpredictable and highly charged emotional issue for parents. Judges are often put in the difficult position of adjudicating on the most suitable custodian for the child. Parents and children do possess rights in the field of custody. These are bestowed upon them either by Maltese Law or/and by International Conventions and Declarations that are recognised by Maltese Law. Some of these custody rights are not yet conferred on parents and children. However, this shortcoming is intended to be addressed with the enactments of already proposed future laws. The primary aim of this thesis is of delineating these custody rights, and of showing the necessary means for their enforcement. This exercise is carried out by first analysing the general and ancillary concepts of custody. Chapter 2 depicts the important factors on which a custody dispute is determined. Chapter 3 outlines the custody rights that are conferred on parents and children by the different International Conventions and Declarations. Chapter 4 highlights the most important custody rights that parents and children should possess. Ultimately, this thesis aims at proposing new ways and means how these custody rights can be incorporated, and enforced in the Maltese legal system.