Family & Law

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Access_open More than two parents?

Divorced and separated parents’ attitudes toward parental responsibility and legal parenthood of stepparents in the Netherlands

Authors Anne-Rigt Poortman
AbstractAuthor's information

    More and more children in the Netherlands grow up in stepfamilies and stepparents may play an important role in children’s lives. Stepparents have had relatively few legal rights, yet the strengthening of their legal position – as well as of other parental figures – has been an ongoing public and political issue in Dutch society. Little is known about how parents actually think about parental rights for stepparents. Using large-scale Dutch survey data from 2020, this study described divorced and separated parents’ attitudes toward parental responsibility and legal parenthood of stepparents in stepfamilies. In addition, the study explored how support for these rights depended upon people’s own (step)family situation and the role of conflict in these associations. Results showed that a minority of parents supported legal rights for stepparents. About a third of parents thought that resident stepparents should be able to get partial parental responsibility compared to 8% in favour of full parental responsibility for these stepparents. Support for rights of nonresident stepparents and for legal parenthood of stepparents was lower. Support levels were found to be dependent on parents’ own experiences with stepparenting, particularly in case divorced parents had much conflict with their ex-partner. Parents with full-time resident children and those with a new partner (especially a spouse) were more supportive, whereas parents whose ex-partner had a new partner and family as well as those who had nonresident stepchildren living part time or full time with the ex-partner of their new partner showed less support. Overall, the results suggest that support for establishing legal rights for stepparents is not self-evident among divorced and separated parents and that views on stepparent rights likely differ between different parental figures, even more so in high-conflict situations.

Anne-Rigt Poortman
Anne-Rigt Poortman is a professor at the Sociology department of Utrecht University (Chair: Family diversity and life course outcomes). She has specialized in family sociology and social demography. She is particularly interested in divorce and repartnering, postdivorce residence arrangements of children, new relationship types, and legal aspects of partner relationships. Currently she is the program leader of a large data collection (New Families in the Netherlands; NFN) and related VICI research program about postdivorce family diversity and outcomes for children and parents.

Access_open The digital acceptance of the Dutch levenstestament

Authors Nora Bouzoraa and Prof. mr. dr. Leon Verstappen
AbstractAuthor's information

    Notaries in the Netherlands pass many private mandates (levenstestament) for the elderly, encompassing a wide range of provisions in two main categories: a continuing power of attorney and advance directives. Thus, private mandates cover many areas of life and address a variety of people and institutions. This legal instrument is a better alternative to statutory measures such as plenary guardianship (curatele), protective trust (bewind) and personal guardianship (mentorschap), because it is the elderly person who determines how care is provided in the event that he or she is no longer able to take care of themselves. It is an instrument with which empowerment and supported decision-making can be put into practice in accordance with the UN Convention on the Rights of Persons with Disabilities (CRPD). In recent years, this instrument has undergone a development in the Netherlands. This development is driven by practical experience. In the article, some problems with the use of private mandates in practice are inventoried, focusing on the digital acceptance of this instrument by institutions (banks, medicare, health insurance, pension funds, etc.).

Nora Bouzoraa
Nora Bouzoraa is student Private Law and Notary Law at the University of Groningen.

Prof. mr. dr. Leon Verstappen
Leon Verstappen is an professor in private and notarial law (family law and property law in particular).

    The rise in divorce rates around Europe has led to an increase in custody cases before national and international courts. In these challenging and often volatile cases, rights of children and parents are simultaneously at stake, rendering decision-making at the courts a highly delicate balancing act. Debates regarding custody policies have been characterized by changing gender roles and a battle for equality, while gender-based parenting roles have become less distinct. This raises questions with regards to the perceived divide between mothers and fathers in family adjudication. The aim of this article is to identify what European human rights law has to say with regards to parental equality in custody disputes, and to what extent it leaves room for parents to be evaluated by different standards. Two main factors are brought forward: contemporary values and perceptions of parenthood, and the indeterminacy of the best interests of the child. The effects of these two factors are analyzed in the context of case law of the European Court of Human Rights and the Court of Justice of the European Union. The article argues that differing evaluation of mothers and fathers in custody-related disputes is, to a certain degree, allowed by the European human rights regime, whenever such difference is deemed justified by the best interests of the child.

Tapio Pauli Aleksi Koivula LLM
Tapio Pauli Aleksi Koivula is Junior Researcher at the University of Lapland: Lapin Yliopisto.

Access_open The reforms of Spanish law on legal capacity and supported decision-making for persons with disabilities

Keywords Legal capacity, Supported decision-making, Persons with disabilities, Law reform, Support and protection measures
Authors Prof. dr. Jordi Ribot Igualada
AbstractAuthor's information

    This article provides an updated account of the reforms introduced in Spanish adult protection laws to comply with Article 12 CRPD. It examines the new legal framework for supporting and protecting adults with disabilities resulting from the entry into force of Act 8/2021 of 2 June. In addition to commenting on the most relevant statutory rules, it furnishes information about case law developments and the impact of reforms on the legal situation of persons with intellectual or psychosocial disabilities or mental health disorders.

Prof. dr. Jordi Ribot Igualada
Jordi Ribot Igualada is a professor of civil law and currently heads the Institute of European Private and Comparative Law at the University of Girona.

    The Dutch levenstestament allows adults in the Netherlands to make their own provisions for a future period of incapacity. Although this instrument is becoming increasingly popular, the current regulation and application of the levenstestament are not without problems. The levenstestament has been designed and conceptualised by the Dutch notariate within the framework of the existing law. This regulatory framework has not been designed with a setting of future incapacity in mind and compliance with international human rights norms and principles, such as Article 12 UNCRPD, is therefore not sufficiently guaranteed. Moreover, empirical research indicates that the application of the levenstestament, in practice, does not run smoothly in all cases. Across Europe there are countries where the possibility to make instruments, similar to the Dutch levenstestament, has already been in place for quite some time and where such instruments are regulated by law. This article presents the results of a comparative study of the legal regulation and practical application of enduring documents in four European jurisdictions (Belgium, Germany, England and Wales and Switzerland). Recommendation CM/Rec(2009)11 on Principles concerning continuing powers of attorney and advance directives for incapacity has been used as a frame of reference to look at the regulation on the form, content, entry into force, registration and/or certification of each enduring document as well as the appointment and role of attorneys, the preservation of legal capacity, conflicts of interests and supervision. The aim has also been to gain an impression of the law in action. Based on this information best practices have been identified which provide a solution to the problems with the regulation and application of the levenstestament in the Netherlands. The adoption of specific legislation incorporating these best practices in Book 1 of the Dutch Civil Code is recommended.

Rieneke Stelma-Roorda LLM MSc
H.N. Stelma-Roorda LLM MSc is PhD Candidate at Vrije Universiteit Amsterdam.