미국법상 양육자 결정에 대한 소고 － 부모 아닌 자의 양육 참여를 중심으로 －
On Custodian Determination under the American Law － focusing on non-parental child custody －
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참고문헌
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Abstract
American parents are guaranteed to exercise two child-custody rights 'the Parental Preference Doctrine' and 'the Parental Autonomy' by the USA Constitution. If parents do not rear their children properly, the two rights can be limited or terminated. If the termination of parental rights takes effect, parents in question cannot participate in the rearing of their children and recover those rights any more. In order to terminate parental rights, the government is to make clear and convincing the reason for the termination. Unless the termination of parental rights takes effect, parents in question can take part in bringing up their children partially but their rights are limited according to powers and responsibilities of guardians or custodians. That is to say, parents, guardians and custodians can rear children even in the case that parents of children in question live. The extent of rights which were given the parties involved vary according to case. If parents appoint their children's guardians, both of them can adjust their rights each other. If the Juvenile Court appoints guardians of children in question, particularly if it appoints guardians or custodians in the name of child abuse, 'the Parental Autonomy' can conflict with 'the Best Interest of the Child'. Therefore, in order to prevent an abuse of its rights to this intervention, it is to follow the due process and to make clear the necessity of the intervention. According to the Korean law, the guardianship to children in question cannot take effect until the parental authority of their parents was forfeited. In this case, parents and guardians in question cannot rear the relevant children together. Furthermore, parental rights are limited and foster cares are practiced by the Law on Child Welfare. However, at the present time duties and rights of the three parties, parents, the Support Center for Foster Parents, and foster parents, are not clear. In the case that parents are not able to fulfill duties to child-rearing for themselves, the government has to help them to perform their duties as parents properly. For the proper intervention of the government, the standard for intervening the custody of children is needed to be clearly stipulated. The American Law will be a good guide to the amendment of the Korean law concerning parental authority.
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