Vårdnadstvister : En rättssociologisk studie av tingsrätts funktion vid handläggning av vårdnadskonflikter med utgångspunkt från barnets bästa

Sammanfattning: The purpose of this socio-legal dissertation is to examine the role of the district court in the handling of custody disputes, from the standpoint of the child's best interest. More specifically, the focus is partly on the relationship between the family and society during district court proceedings, and partly on the relationship between civil law and public law procedure that is to say between the court and the social welfare office as well as the relationship between therapeutically and legally based conflict resolutions. Moreover, the study examines the relationship between different professional actors in custody proceedings on the one hand, and the relationship between these actors and the parents on the other. From a more scientific perspective, the project offers a study of interpersonal conflict resolution within the framework of modern society. The dissertation takes off from a theory based on a standpoint of sociology of law, perspectives of realistic scientific theories, and a standpoint of systems theory. This study examines district court procedure using a strategy of realistic method. The empirical data of the study consists firstly of an enquiry poll answered by 221 professional actors (judges, attorneys, and social workers), as well as 107 parents who have had their case decided in the courts. Secondly it consists of a document analysis of 114 court custody cases that have been decided in the district court. On the basis of the results of this study it can be said that the overarching function of district court custody proceedings is to provide a public arena on which parents are able to battle under civilised forms. Unfortunately, the proceedings do not appear to lead to an actual concrete result. For instance, the results of the study show that so far the legislative body has mapped out neither the parents involved in custodial conflicts nor the conflict at hand; instead the court approach is set on that any person may become involved in a custody dispute, and each conflict is treated as an isolated event. The empirical study, however, indicates that the parents involved in this enquiry are, as a group at the time of the conflict, socially and economically disadvantaged. The study also shows that a majority of the parents are subject to at least two parallel crises. In other words, the results indicate that not one, but several causes and crises as a cumulative effect have laid the foundation for the custody dispute. The district court proceedings for custody cases follow more or less the same order as in the 1920's, even though society's views of the parental role, the child, habitation structure, and conflict handling have changed. Furthermore, it is demonstrated that the district court fails to apply the "child's perspective" as presented by the Swedish Children's Committee. As a result of this, the best interest of the individual child is neither inquired nor taken into consideration. Instead, the district court evaluation of the child's best is taken from conditions found in legal sources. These sources only indicate the general needs of the child. The results of the study also show that district court procedure involves taking the conflict away from the parents and, through conceptualising it, making a decision according to legislation. Additionally, it can be seen that whereas professional actors, in line with legislation, defines the conflict as one of interests, the parents define it primarily as a conflict of values. Also, court proceedings do not primarily seek to reach a genuine conflict resolution, but rather to halt a conflict and establish peace in the point at issue.

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