Fact deficiencies in courts : The gap between law and science

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  • 裁判における「事実」の欠如 : 法と科学の乖離(<特集>離婚の心理学と法的問題)
  • 裁判における「事実」の欠如 : 法と科学の乖離
  • サイバン ニ オケル 「 ジジツ 」 ノ ケツジョ : ホウ ト カガク ノ カイリ

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Abstract

Uncontested divorces do not go through courts; however, mediated divorces, post-filing divorce settlements, and divorce decrees do go through courts. Meanwhile, the parties to the dispute, facing conditions such as living separately, spend days and months dealing with court procedures from the beginning to the end of the dispute. Care of children caught in the midst of their parents' disputes is the most problematic aspect of divorce cases. The civil law imposes a single-parent custody system following divorce; however, there is still joint custody before the divorce, even if the parents are separated. Despite this, the law does not entertain the assumption that joint custody is in the child's best interest. In single-parent custody-based procedures, the courts set parents against each other to inquire, "Which parent can be a better guardian?" The resulting judgments exclude the parent that loses from the child's life. In contrast, in joint custody-based procedures, the courts encourage mediation between the parties. The inquiry in such cases is, "How should the disputing parents go about raising the child?" In the former "trial," the "facts" are abstracted, and a legalistic regime is imposed, leaving no role for science. In the latter mediation-supportive procedures, clinical psychology, psychiatry, science, and other factors play an indispensable role.

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