The 'Best Interests of the Child' and Parental Separation: on the 'Civilizing of Parents'

Abstract

The concept of the ‘best interests of the child’ is both pivotal in family law and yet essentially contested. This paper reflects on the concept's position within a number of longer-term histories – of the jurisprudence surrounding child custody, of the social construction of childhood, and of the emotional constitution of family life more broadly. The turn to a co-parenting model from the 1970s onwards and the rise of the concept of the ‘civilized divorce’ is analysed by drawing on Norbert Elias's analysis of ‘processes of civilization’ in Western social life. The paper argues that the post-separation co-parenting model is only partially explained as the outcome of political manoeuvring by particular social and professional groups; it should also be understood as part of longer-term trends in family life, emotional management, and the socio-legal construction of childhood, as part of the on-going ‘civilizing of parents’.

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