The Right Of A Minor To Independent Status – Three Models

Cohen, Yitshak | March 19, 2015

This article examines a minor’s right to independent status in matters of family law, the importance and benefits of that right, the interests it competes with, and possible approaches for the future. The right of a minor to independent status was initially intended to resolve a concern that parents, while undergoing divorce proceedings and focused on their own interests, might compromise the interests of their children. I argue that this concern has developed into a legal presumption that parents compromise the interest of minors in divorce proceedings. However, this presumption contradicts the assumption, fundamental to every legal system, that parents are natural guardians who safeguard the interests of their children. In addition, the development of a minor’s right to independent status has several negative effects on divorce proceedings, among them: contractual uncertainty, lack of finality of judgment, waste of judicial resources, and prolonged divorce proceedings between parents.

This article offers the following three models for protecting the interests of the minor: (i) requiring the court to comprehensively examine the interests of the child and then granting a presumption of validity to the court’s determination—that determination should also serve as binding precedent for a subsequent court; (ii) legislating clear considerations and guidelines for defining the best interests of the child and thereby reducing future relitigation; and (iii) appointing independent representation for the minor. These models may serve to create a more appropriate formula for balancing the competing interests in family law proceedings.