On The Pirnciple Of Best Inetrests Of Child In Divorce Law

This paper mainly focuses on the protection of children’s rights in divorce law.Nowadays,“the Principle of Best Interests of Child” is recognized as the supremecriterion in dealing with children cases in the field of family law; in the meanwhile,it is the principle that has been emphasized many times by “Declaration of the Rightsof the Child” and “Convention on the Rights of the Child”.“Convention on theRights of the Child” requests every member states not just establish “the Principle ofBest Interests of Child” in legislation, but ensure the principle is practiced in specificchild’s affairs. The children’s physiology and psychology were hardly injured whentheir parents divorce; the law can not prevent the parents’ pursuit of individualfreedom and happiness, but can reduce the injury to children by make the legalsystem leaning to them and enhance their legal status.This paper shows three divorce cases that involving children, which trigger offquestions and doubts focus on the protection of the rights of the children, thatwhether the existing system is comfort to the spirit of “the Principle of Best Interestsof Child”? And whether the current legislation can effectively protect the maximuminterests of children? With the guidance of “the Principle of Best Interests of Child”,this paper analyzes the system on children’s interests in divorce law. The law hasexposed many shortcomings, thereby the reasons were analyzes in this paper，it isreach the conclusion that the backwardness of the legislation and socio-culturalimpaction make it difficult to protect children benefits. And the article cites a largenumber of specific stipulations on the protection of children in foreign divorce law,which we can use for reference. Finally, this paper makes suggestions on law making.The author suggests that “the Principle of Best Interests of Child” should beestablished in the “Constitution” and “Marriage Law” and the division of the divorcelaw system must be more detailed gradually, which has been appealed in academic area. Children’s rights are divided into the substantive rights and procedural rights inthis paper; substantive rights stress that the legislation should increase the specificcontent of rights for children, and consider more respect for the wishes of children inchild support and visit system after their parents divorce. Procedural rights requestrestricted divorce proceeding and slow down the pace of divorce, furthermore, thecourt should be involved in the divorce cases which involving children. The authoremphasizes to build a system that the third party helps to arrange the lives ofchildren when their parents are limited divorce. Such a system not just fills thelegislative gaps, but also reflects the extent of the development of human rights andthe humane care of the state and society.This article is divided into four sections.Several issues were extracted from three cases in the first section. The first caseis about an actress who competed for her daughter’s custody with her husband in thedivorce process, the last two cases start the disputes on the child custody andvisitation after divorce. The three cases reflect the impaction of divorce on children’sinterests, then the author simply analysis the problems reflected in the cases.In the second section, the author systematically introduces the relevantregulations and legislative defects about the children’s rights in divorce law, and thensimply analysis the reasons for the defects of divorce law on “the best interests ofchild”.In the third section, the representative provisions of foreign family law relatedto children’s interests were enumerated, and the author summarizes and learnsforeign well-functioning system.In last part, the paper concludes with suggestions on the interests of children forour country. The author puts forward the shallow views from the following threeaspects: establishing “the Principle of Best Interests of Child”, protecting children’ssubstantive rights and procedural rights in the divorce law.