CRC & Domestic Family Law

CRC & Domestic Family Law

CRC & Domestic Family Law

Introduction

The term "domestic relations" is often used to refer to the field of family law. In one sense, the use of "domestic" is now somewhat ironic: over the last fifty years, the field has undergone considerable "internationalization." The developments in international family law over the last fifty years are relatively minor compared to the effect and scope of family law reform generally in the United States. Most Americans are unaffected by international family law, let alone by its doctrinal revisions; most lawyers and judges do not deal with these issues on a regular basis. In addition, the major shifts in U.S. family law over the last fifty years, such as the advent of no-fault divorce, the development of marital property, the attention to domestic violence, and the focus on gender equality, to name just a few, seem largely unrelated to international family law. This disconnect exists even though foreign practices may have influenced some of these changes, internation al instruments contain parallel reforms, and transnational families sometimes experience the domestic reforms differently.

Moreover, even though the subfield has seen significant change, new measures have not yet led to a transformation of the entire subfield. Significant features of international family law have remained relatively unchanged. International family law involves, as it always has, the application of existing family law doctrine to families whose members cross international borders. Often the substantive law is the same whether the court in the United States is addressing a transnational or domestic dispute. For example, a court will generally employ the same approach when faced with either the international or domestic relocation of a custodial parent. A court may be particularly concerned about the degree to which an international move might affect visitation, or whether the court will lose jurisdiction if the relocation is permitted, but generally the analysis is similar. Likewise, other issues, such as whether a court will enforce a provision for "mahr" in a prenuptial agreement, often proceed along familiar grounds.

Discussion

IN FALL 1989, the United Nations General Assembly unanimously adopted the Convention on the Rights of the Child. Within a year, a sufficient number of nations had ratified the Convention to give it legal force-an unprecedented speed and breadth of action by the international community in acting on a human rights convention. Although ratification remains questionable in some major nations, notably the United States (see Cohen & Davidson, 1990) the Convention stands as a guidepost for development of a new approach to children. Unlike previous bills of rights (both official and unofficial) for children, the Convention is both comprehensive and conceptually coherent. Unified by a recognition of children's personhood, the Convention recognizes the significance of liberty, privacy, equality, and nurturante as rights essential to preservation of children's integrity as individuals. It is a “constitutional” document that provides a normative foundation for development of child and family policy in virtually all domains (see, e.g., Melton, 1989, on juvenile justice; and Melton, 1990, ...