I. INTRODUCTION

A. The Emergence of the “Best Interests of the Child” Standard in Taiwan

In 1994, the Grand Justices (Constitutional Court)[1] of Taiwan declared unconstitutional the rule of preference for fathers’ parental rights because it violated the fundamental right of equal protection irrespective of gender. In response to this important decision and pressure from Taiwanese women’s movement groups, the Legislative Yuan (Congress of Taiwan) began amending the Family Book of the Civil Code. Finally, the “best interests of the child” standard for child custody cases was promulgated in 1996.

For several decades before 1996, there had been the presumption of paternal custody for custody disputes in Taiwan. During this period, in some 80-90 % of all custody cases the custody was awarded to fathers, and the court even tended to enforce the gender-biased presumption of paternal custody.[2] Both women’s rights and children’s well-being were ignored. The best interests of the child standard was therefore enacted to eliminate the gender inequality and the disregard of child welfare in Taiwan’s child custody cases.

Although Taiwanese law has contained the best interests of the child standard, “law in books” is not equated with “law in action.” In Taiwan, it is not unusual to find that while the “law in books” is almost perfect and completely logical, it just does not work in reality. Sometimes changes in written law do not necessarily change judicial attitudes.[3]

The basic belief of this study is that the effective date of a new law makes possible the inauguration of a series of empirical investigations for evaluating legal policy. We could and should re-examine the assumptions of the law, research its application in judicial and enforcing processes, and detect its effects to find out the extent to which it has improved the situation or created new problems that need to be settled.[4] Based on this point of view and the fact that there is a lack of this kind of research, this dissertation is intended to be an empirical and descriptive study on “law in action” of the “best interests of the child” standard in Taiwan.

The “best interest of the child” has become the governing legal standard for determining child custody cases in many countries around the world. For instance, in the United States, all states have recognized that the child’s welfare or best interests should be the paramount concern in custody decisions.[5] According to this standard, the child’s best interests supersede the parents’ legal rights; the focus of custody disputes following divorce has been shifted from the issue of who has the right to custody to what kind of custody arrangements will serve the child’s best interests.[6] Nowadays very few would disagree that “a child is not a chattel to be disposed of according to the wishes of either or both of his parents but is a human being and personality and is to be treated as such”.[7]

However, a child’s “best interests” are difficult to define, and there is no consensus as to what constitutes a child’s best interests. Although many of the countries adopting this standard have tried to list the factors that a court should ponder in determining the child’s best interests, these factors are not decisive and not exclusive. In fact, in addition to the factors listed in the law, usually judges are required to consider “all relevant factors.”[8] Therefore, judges have wide discretion to excise their own viewpoints on what is best for the child. This vague standard makes court custody decisions susceptible to judges’ personal values, beliefs, and biases.

Because judges’ values, beliefs, and biases usually come from their socialization processes and life experiences, and also because this standard was transplanted from the West and is relatively new to Taiwan’s society, how judges explain and apply the law may reflect the social and cultural influences of the society in which they are on the bench.[9] In order to describe and assess the application of the “best interests of the child” standard in Taiwan, it is first necessary to put the study in Taiwan’s social and cultural context. Then, it is necessary to empirically examine court decisions and interview judges who hear custody cases.

B. Chinese/Taiwanese Concepts of Parenthood and Childhood

Traditional Chinese or Taiwanese society was based on the family and on networks of relatives and personal relationships. The family and the networks provided individuals with a safety net; the well-being of children and other family members was mainly conceived as a family matter, which was supposed to be managed by the family itself.[10] On one hand, the government seldom provided public assistance to individuals; on the other, the government rarely intervened in family matters. Some commentators believe these policies related to the influence of the “Wu Wei”(“nonstriving” or “non-purposeful action”) philosophy of Lao Tzu.[11]

Several popular phrases and old sayings in Chinese societies reflect this tradition. For example, “Qing Guan Nan Duan Jia Wu Shi” means that even honest (and smart) government officials will find it very difficult to judge and decide on family matters. It implies that the government should leave families alone to manage their own household affairs, including childrearing. “Jia Ting Zi Zhi” or “Jia Zu Zi Zhi” means family autonomy or clan autonomy; in fact, in traditional Chinese/Taiwanese societies, it resulted in the autonomy of patriarchal/masculine ruling.[12] Another phrase, “Fa Bu Ru Jia Men,” tells us that the law ends at the family threshold; it clearly indicates that the government should not try to intervene in family affairs.[13]

As to Chinese/Taiwanese parenting styles, many empirical studies consistently confirm that the differences between parental roles, which can be captured in the old saying “Yan Fu Ci Mu” (stern father and kind mother), are still deep-rooted in today’s Chinese societies—including Taiwan, mainland China, and Hong Kong.[14] According to Chinese/Taiwanese culture, mothers are assumed to adopt an expressive role and to be the caregivers of children, while fathers are not supposed to express their affection directly to children and are responsible for teaching discipline. Not surprisingly, Berndt et al. find that in Chinese societies mothers generally are perceived as warmer and less controlling than fathers.[15] Shek’s study shows that, across different socioeconomic classes, fathers are always perceived to be relatively more restrictive and show less concern for their children than do mothers.[16] Given these different parental roles in children’s lives, it is little wonder that the Taiwan Social Change Survey, a national longitudinal study conducted by Academia Sinica, finds that most Taiwanese have more intimate relationships with mothers than with fathers.[17] These findings are all similar to what historian Hsiung found after analyzing historical documents and records of the past hundreds of years of Chinese history.[18] The traditional parental roles and the phenomenon that children usually have better relationships with mothers than with fathers still prevail in today’s Taiwan.

However, it is noteworthy that, because of the influential philosophy of Chung Yung (the Doctrine of the Mean, also known as Zhong Yong),[19] traditionally even mothers are not supposed to express affection to their children too directly or obviously.[20] Some studies indicate that Chinese/Taiwanese parents tend to show affection indirectly to their children by providing money or actually doing something for the children. Many Chinese/Taiwanese parents believe that arranging and providing everything for their children is the only proper way to demonstrate their affection, and they seldom say warm words directly or hug their children.[21]

Another popular saying relating to the differences between parental roles is “Nan Zhu Wai, Nu Zhu Nei,” which means that males dominate the sphere outside families, while females dominate the domestic sphere. That is, women are assumed to care for family members and do household chores. Partly because of the influence of Confucianism, this gender stereotyping is still deep-seated in today’s Chinese societies.[22] Some empirical studies find that many women themselves also agree with this tradition. For example, according to an official survey conducted by the Taiwan Province Government[23] in 1993, 45.2 % of women agreed or strongly agreed with the traditional idea of “Nan Zhu Wai, Nu Zhu Nei,” while only 29.1 % of women disagreed or strongly disagreed with it.[24] Another official survey conducted by the Ministry of Interior indicates that 64.1 % of women agreed that “managing household affairs and caring for children are women’s natural duty,” while only 6.5 % of women thought this statement unfair to women.[25]

In reality, in 1998, among all Taiwan’s nuclear families[26] in which only husbands were breadwinners, in 94.51 % of them wives were mainly in charge of household affairs (including caring for children). Among the nuclear families in which the couple were both employed, still, in 90.52 % of them wives were mainly responsible for household affairs.[27] Only 31.61 % of fathers spent more than three hours each day with their children between six and twelve years old, while 66.19 % of mothers did so.[28] As many researchers stress, even though more and more Taiwanese women have had a job outside their homes, they are still assumed to perform their duties in household affairs and childcare.[29] In other words, because the gender stereotyping is so ingrained, women’s labor force participation and concomitant economic independence do not necessarily enable them to be liberated from the duty of caring for children; instead, many of today’s Taiwanese women bear a double burden—they have to perform their duties both inside and outside their homes.[30]

It is noteworthy, however, that the younger the women, the higher their education level, and the more industrialized the areas they live in, the less they agreed with the traditional ideas of gender stereotyping and the assumed duty to care for children.[31] In fact, these traditional ideas have been slowly changing in Taiwan. Further discussion will be presented in a later section.[32]

As to the concepts of childhood, in traditional Chinese/Taiwanese society, children were required to be extremely obedient and dutiful to their parents because they were conceived as having no individuality of their own. Not only were they subject to the rule of adults, but they belonged to their parents.[33] The influential stories of the “Twenty-Four Filial Exemplars,” which have prevailed in Chinese/Taiwanese society for hundreds of years, clearly indicate that children were supposed to obey and care for their parents even though the parents had abused them or had been unreasonably harsh to them.[34] Precisely because children were conceived as parents’ belongings, along with obedience to their parents, Chinese/Taiwanese children also were supposed to be dependent on their parents; from everyday lives to career plans and marriages, parents usually prepared for the children’s needs or directed them where and how to pursue their needs.[35] A popular old saying clearly captures those ideas: “Tian Xia Wu Bu Shi De Fu Mu” (parents can do no wrong to their children).

Indeed, a lot has changed in today’s Taiwanese society.[36] However, people still use “Guai,” “Ting Hua,”or “Xiao Shun” (well-behaved because of being obedient to parents) as one of the best terms with which to compliment a child. Many people still believe that being obedient is the core of filial piety.[37]

Another example of cultural and traditional influence relates to a striking phenomenon in the Chinese/Taiwanese parent-child relationship. Chinese/Taiwanese parents usually emphasize children’s education very much and often require their children to pursue higher education as far as possible, and they will provide all support to, as well as put all pressure on, the children.[38] In today’s Taiwan, a very large proportion of college students depend almost totally on their parents for financial needs. In fact, many of their parents will keep supporting them for graduate studies.[39] Because of this tradition and parenting style of the long-term support for children, it is often emphasized that parents should save as much money as possible for their children.[40] Even after their children have reached the age of majority and have married, many parents still support them financially. The Taiwan Social Change Survey finds that more than half of the Taiwanese adults interviewed say that, when they face financial difficulties, their parents would still give them financial support.[41]

Not only may many parents financially support their adult children, but they may also play a very important role in looking after their adult children’s children, i.e., their grandchildren. In fact, Chinese/Taiwanese society has a long tradition of relying on grandparents and other family members (such as aunts) to take care of children. Historian Hsiung reviewed historical records and concluded that it might originate from the fact that most Chinese married young. He estimated that, during the 16th to the 19th century, on average the Chinese married eight to ten years younger than did the English.[42] Because many Chinese were still teenagers themselves when marrying, usually they would continue to live with their parents and siblings. Naturally, after their children were born, the children’s grandparents (especially the grandmothers) and aunts would help to look after the third generation.[43]

In fact, the Chinese usually relied only on family members to take care of children, and the government also promoted the “three-generation family” concept because it could simultaneously solve both the problems of looking after elders and caring for children at a tender age.[44] Some commentators believe that the reason daycare programs are still undeveloped in Taiwan may be related to this tradition.[45] A recent survey still shows that, while they are working, 62.5% of Taiwanese mothers count on their parents or relatives to care for their minor children, but only 15.7% of them send their children to daycare centers.[46]

C. The Court System and Family Proceedings in Taiwan

Before we explore how Taiwan’s judges apply the “best interests of the child” standard in divorce cases involving custody disputes, this section introduces Taiwan’s legal system and family proceedings.

As Taiwan is a civil law country, comprehensive legal codes usually are the primary source of law, and judges seldom create legal norms themselves. Most of Taiwan’s major laws, such as the Civil Code and the Criminal Code, were basically “transplanted” from Japan, Germany, and Switzerland in the early twentieth century after the Ching Dynasty was overthrown.[47] Nevertheless, some recent pieces of legislation and amendments, such as the “best interests of the child” standard and the Domestic Violence Prevention Law, clearly make reference to laws in the United States.[48]

Taiwan’s first law degree is at the undergraduate level. Partly because of the civil law system’s emphasis on codified laws, legal education and academia focus mainly on logic, abstract concepts, and law codes. Taiwan’s judges are selected by a national examination that anyone finishing the degree can take, so most judges are only between twenty-five and thirty years old when they start to hear cases; in fact, being a judge may be their first job after college. In addition to law, almost none of Taiwan’s judges have ever received any training in other disciplines.[49]

In Taiwan, there are two types of divorce: consensual divorce and judicial divorce. The Civil Code recognizes consensual divorce which only has to be registered at administrative agencies by the parties themselves.[50] If a couple cannot reach a mutual agreement to divorce, they may file for judicial divorce based on statutory grounds, but only the spouse who is not responsible for the existence of the grounds may file the petition. The judicial divorce is primarily fault-based, with the exception of a few no-fault grounds; the statutory grounds for divorce include bigamy, adultery, ill-treatment, an attempt at murdering the plaintiff, desertion, disappearance, incurable loathsome diseases, incurable insanity, and imprisonment. The major no-fault exception, added in 1985, is a “significant matter that makes maintenance of marriage difficult,” but only the party not responsible for this matter may file for divorce.[51]

The new law concerning child custody issues adopts the “best interests of the child” standard and lists the factors that a court should consider while determining custody. The new law also, for the first time in Taiwan’s legal history, introduces the terms and arrangements of visitation and joint custody.[52] This new law will be discussed in detail later.

In most jurisdictions in Taiwan, family cases have been decided by an ordinary Civil Court that also handles property cases. By the end of 2001, only Taipei District Court and Taichung District Court had a Family Division specializing in family cases. While in principle all civil cases follow an adversary procedure, Part IX of the Code of Civil Procedure clearly distinguishes between the procedure for handling family cases and the procedure for handling property cases.In short, because family cases are usually concerned with public interests such as child welfare, the new law enacted in 1999 allows more discretion to judges and authorizes them to make investigation on their own motions in order to make proper decisions. For example, article 575-1 stipulates that “the court may take into consideration the facts not alleged by the parties, and the court shall make necessary investigation into the facts and evidence.”[53] By contrast, in property cases, “a party shall bear the burden of proof with respect to the fact he alleges in his favor.”[54] For another example, article 572-1 clearly provides that “the court, on its own motion, may determine custody and visitation according to the best interests of the child and is not confined to the parties’ allegations.”[55] In contrast, in property cases, “the court may not give a judgment on any matter not mentioned by the parties.”[56]