The Study on the Child Custody of Same-Sex Family

• Main Authors: Lin, Shu-Yu, 林書伃
• Other Authors: Dr. Jenny H.Y., Shyu
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/90334772145197879575

碩士 === 國立臺北大學 === 法律學系一般生組 === 99 === Homosexual parents desire to raise children just like heterosexuals.Moreover, homosexuals are able to make relationships with non-biological children closely by having same-sex marriages, civil unions, or children adoptions. In Taiwan, same-sex couples are not able to get married or adopt children. The relationship between same-sex couples and children are not being protected in Taiwan’s law. This article focuses on the U.S. legal system and case studies, supplemented by some laws in the British legal system. Firstly, there are only a few cases about homosexual parents fighting for child custody and visitation in our country, and there are no cases in regards to same-sex couples fighting for child custody and visitation rights. In order to give our courts references when they judge similar cases in the future, this article will observe American cases in attempt to understand how American courts solve cases in regards to the child custody of same-sex families. Secondly, this essay discusses the transnational child custody of same-sex family, and the recognition and enforcement of foreign custody or visitation judgments. Presently, there are no cases about the transnational child custody of same-sex family, and there are no same-sex couples applying for Taiwanese courts to recognize the foreign custody or visitation judgments. However, it is inevitable that the courts will face to this issue. In addition to discussing the cases of homosexual couples having married or adopted children in a foreign country in the transnational child custody of same-sex families, whether these cases will conflict with our public policy? When same-sex couples applying for Taiwanese courts to recognize the foreign custody or visitation judgments, will Taiwanese courts hold these judgments against the principle of the best interests of the child? In the opinion of Taiwanese courts, homosexual orientation is the one of the negative factors to the best interests of a child; nevertheless, many studies have confirmed that sexual orientation is not conflicted with a parenting role. In the opinion of this article, since the child is raised in a same-sex family, and the same-sex partner became the child’s psychological parent, the courts could abandon the prejudice in homosexuality and recognize the parental right of the same-sex partner, not only could the right of the same-sex partner be protected, but also the child could maintain emotional stability with their psychological parent.