Examining “The Right to Be Heard” in “Child Custody Evaluation System”: in Light of Comparative Studies

Hajar Azari
Tarbiat Modares University

Abstract

Advances in the humanities have led to a shift in attitudes toward children through the treaty of the Convention on the Rights of the Child (1989). Social activists tried to reduce the negative consequences of divorce on children and their better adjustment with new life after their parental divorce, so they attempt to change family law to provide children's participation in any judicial proceedings (such as custody) to express their views about decisions affecting their lives and well-being. In this article by applying qualitative research methods, the articled of Iranian family law has been analyzed to extract capacity of children's legal right to participate in the process of decision- making in custody disputes. The findings show, three f approach about children's right and their participation are identified: The right-based approach, the best interests approach and mixed approach. The right-based approach focuses on fundamentally rights such as: equality, dignity thus emphasis on the right of the child to be heard. The second approach seem to have negative views about children's right to participation because involving children in parental fighting, are very harmful. While the third approach states, it is necessary that children's voice to be heard, as the same time emphasis on child protection and interest of child. The paper indicates, that under Iranian law, children's views are ignored in decision- making process particularly in custody litigation. Keywords: The children's right to be heard, The best interest of the child, The convention on the rights of the child, Family proceedings, Iran's judicial system

Presentation