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21 Concil. Cts. Rev. iii (1983)

handle is hein.journals/fmlcr21 and id is 1 raw text is: 


                       IN THE  BEST  INTERESTS   OF  THE FAMILY

    Although the concept of self-determination is a key concept in the mental health profes-
sions, in divorce law, self-determination is a revolutionary idea. Since the law, throughout the
ages, tells people what to do and literally hands down court orders, one can anticipate that the
legal practitioners of divorce law will initially have some difficulty in feeling comfortable with
and accepting a principle that is so opposite traditional legal thinking and practice. Fortunately
there is already evidence that an increasing number of judges and lawyers are encouraging
divorcing families to exercise self-determination in planning the parameters and parental
responsibilities of their post-divorce families. Where this is done, in a sense, the family, relying
on its own internal authority, is writing its own orders which are reviewed by an attorney(s) and
a judge whose  responsibility is to ensure that the plans are just and fair for all concerned. In
these cases, when the judge makes his order the difference here, in relation to tradition, is that
he is not imposing his will on the family but is supporting the family and respecting their right to
determine what  they feel is best for them in order to cope with their divorce crises as parents
and as a family. There is a recognition of human dignity not usually present in the adversary
    A few definitions of various forms of self-determination are in order, as follows:
    Se/f-determination in divorce means making one's own decisions about one's own life in
accordance with one's own needs, values, perceptions, limitations and strengths. It is a process
that encourages personal uniqueness  to express itself. It is a concept of responsibility-to
one's self and others, as well as an action-oriented concept. It rests on the essence of Being
which  is to Do. It can be a stepping stone to personal growth, particularly in crises. Self-
determination dignifies the divorce process.
    Family self-determination in divorce means family members making decisions about their
own  family for the benefit of each individual in it and for the family as a whole and recognizes
that parents and families are forever.
    Guided  family self-determination in divorce means that the family voluntarily chooses to
relate itself to a third, neutral party, in a confidential relationship, as it strives to reach its own
decisions about its own family. Family divorce mediation is an example of this process.
    When   advocating change for the purpose of setting aside inappropriate traditions and
practices, such as the ones found  in the adversary process in divorce, the advocate for
constructive change must  be prepared to offer assumptions which  underpin advocacy  for
reform. And so it is for advocating family self-determination as an integral part of the divorce
process. These  assumptions, to be further tested through experience and  research, now

    * The family, better than anyone, knows what is best for it. This principle connotes respect
    and  trust for the family.
    * Parents who were unable to agree while married can often agree during and after divorce,
    particularly where the health, education and welfare of the children are involved. We
    already  know  that most of the conflicts in marriages are not about the children.
    * In divorce, basically most persons fear conflict and are desirous of settling their dif-
    ferences  with the least pain and in a non-adversarial way.
    * People in crisis can change. An entire body of crisis theory and practice supports this
    assumption.   Positive change is more likely when people make their own decisions.



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