Current problems concerning the law on custody of children

Abstract

The law relating to custody of children presents few problems of exposition, but frequent difficulties in application. In no other field of law do Judges so devoutly hope that the parties may resolve matters without their assistance, Rarely do the parties fight with every means at their disposal so bitterly as they do in a contested custody case. Perhaps in no other area should society monitor with meticulous care all legislation and jurisprudence relating to custody of children if for no other reason - on the awareness of two basic realities: primarily we are all children and children's children as were our parents and will be our sons; secondly that man's instinctive lure for the choice of a partner for life, consecrated by marriage, together with his natural inclination to have children on whom to lavish his love, care and protection, is juxtaposed with the reality that marriage may shatter, annihilating with it all family ties. The substantive issues in the field of custody law are numerous and of particular difficulty, since any decision in this area necessarily inflicts emotional and practical repercussions not just on the parents but on the child especially. To start off with, custody suits are not necessarily limited to the event of marital breakdown. Indeed custody disputes may arise between an unmarried mother as against the natural father of the child in question; between the foster parents and the natural parents: between one parent, adoptive, natural or married as against a non-parent. The primary problem here being the extent, if at all, to which the normal rules on custody should be made applicable in such particular cases. Yet quite apart from these specialized problems in this field of law, the more obvious and recurrent ones are by no means less difficult to solve. One of those basic problems is the criterion with which Maltese and foreign Courts purport to award or deny custody of a child to one of its parents or, and which by far is more serious, to a non-parent.