Love and the Law, Children Against Mothers and Fathers: Or, What’s Love Got to Do With It?

58 Pages Posted: 30 Nov 2009 Last revised: 29 Dec 2014

See all articles by Benjamin Shmueli

Benjamin Shmueli

Bar-Ilan University - Faculty of Law

Date Written: September 1, 2009

Abstract

Should there be a legally enforceable duty for a parent to raise his child in an atmosphere of warmth and love? Is it possible to use our current judicial system to judge a civil dispute between a parent and child based on failure to meet the duty of emotional care? And, if it is possible, should the legal process impose a positive duty on the parent to love his child, or should it confine itself to merely a negative duty for the parent not to emotionally neglect his child? These questions are not trivial in a world that, until recently, held the perception that the law should refrain from intervening in the family unit and allow the parent to retain his authority, rather than giving the child the right to file a claim against his parent for damages in general, and on the grounds of emotional neglect and lack of love in particular.

The paper grapples with the question of whether parents should be required by law to act lovingly towards their children. The paper presents several legal models which attempt to seek a balanced approach which will perceive the family as a separate sphere, where legal intervention in its affairs may cause more harm than good, but also perceive the family as a collection of individuals whose disputes may be resolved within the framework of private law. This paper will show that the existing models not balanced enough: some prefer the sanctity, autonomy, and privacy of the family and therefore grant immunity to the parent from tort lawsuits brought by their children; some tend to the other extreme, and almost negate, in practice, any separate arrangement for the family unit; and some, which are more balanced and allow for the creation of special arrangements for the child to sue which rely on ordinary legal mechanisms, are insufficient because they lack a clear legal declaration defining the rights of the child in general, and the right not be emotionally neglected in particular. One religious model presents a satisfactorily balanced solution, but it cannot be applied as is to modern secular law.

The proposed model tries to achieve true balance between the sanctity of the family and the needs of a child by bringing together tools from modern law and religious legal systems to result in a new and creative solution.

The paper wrestles with many difficult topics within the realm of family law, among them: familial relations as reflected in civil law; justiciability of parent-child relations; the role of extra-judicial means of mediation or treatment within the legal process; children’s rights and the respect owed to the child; and the importance of recognizing the role of expressive law and its declarative function in cases when, on the one hand, it is very important to create the norm and grant the right, but, on the other hand, it is not so appropriate, due to the nature of familial relations, to enforce it in daily life.

Emotional neglect serves as a test case for examining tort lawsuits against parents in general. The proposals in this paper are also relevant in non-tort cases of civil claims brought by children against their parents, not just claims for emotional neglect.

Suggested Citation

Shmueli, Benjamin, Love and the Law, Children Against Mothers and Fathers: Or, What’s Love Got to Do With It? (September 1, 2009). Duke Journal of Gender Law & Policy, Vol. 17, pp. 131-188, 2010, Available at SSRN: https://ssrn.com/abstract=1514356

Benjamin Shmueli (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 5290002
Israel

HOME PAGE: http://www.law.biu.ac.il/en/node/455#tabs-tabset-5

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