In the early morning hours of Jan. 10, 2005, a four-year-old girl — who became known in the media as “little sister” Chiu — was beaten by her alcoholic father, resulting in severe injuries. When no intensive care units in Taipei had room to accept Chiu, she was transferred to Tung’s Taichung Metroharbor Hospital in Taichung’s Wuchi District (梧棲), where she fell into a coma and died from her injuries.
That event brought attention to issues in the referral process of Taiwan’s medical system, and led to the recognition and reform of medical ethics to prevent similar tragedies from reoccurring. Hidden beneath the “little sister” case were institutional loopholes that prevent the adequate protection of children’s human rights in divorce cases. Despite his criminal record — which included charges for assault, extortion and drug use — Chiu’s father, who had a history of abuse, was somehow granted custody of her following the divorce. That relaxed guardianship system has lit the fuse for numerous child abuse cases.
During an interview at the time of Chiu’s incident, lawyer Cheng Chieh-chih (成介之) said: “When child custody is left to private agreements between parents, situations such as ‘little sister’ Chiu’s are unavoidable. For example, a father, who has a history of violence, is unable to care for the child, but a mother, out of fear of the father, does not dare to fight for custody.”
Indeed, the Civil Code (民法) stipulates: “After the husband and the wife effect a divorce, one party or both parties of the parents will exercise the rights or assume the duties in regard to the minor child by mutual agreement.” Special cases where the parents have the ability or resources to go to court allow for professional mediation and judgement, but those are few and far between. Therefore, child custody being determined through mutual agreement is the norm for most cases of divorce in Taiwan.
On March 24, 2023, the Constitutional Court issued Judgement No. 4 on the Case on the Constitutionality of Barring the Party Solely at Fault from Petitioning for a Divorce Decree (限制唯一有責配偶請求裁判離婚案), determining that the divorce system must be amended within two years. Although the case focused on the judicial divorce system, portions of the resolution state that the freedom of divorce should be limited in the interests of children and that the government must design comprehensive measures for the divorce system based on the interests of children, which should also be applied to mutual consent divorces.
When changing the judicial divorce system, it is crucial that Taiwan also consider the appropriateness of mutual consent divorce while placing emphasis on safeguarding the best interests of minor children. Looking at the practices of other countries for guidance, when a couple with minor children files for divorce, they must undergo professional counseling to complete a “parenting plan” agreement, which covers issues such as custody, child support and visitation rights. If the parties are unable to reach an agreement, the case is referred for court mediation, which might involve social worker visits or a judicial review as necessary. Professionals such as lawyers and experienced family mediators, along with other relevant authorities, should gradually establish talent pools to handle these parenting plans in various cities and counties.
Readers might be familiar with the ads around the courts promoting things such as “Your divorce handled for just NT$500 [US$15.17]” — some comments online even joke that the fee has not changed in more than 30 years. Hidden in the backdrop of that overly lax system is a tragedy for children. For too long, the divorce system has been stuck in an awkward dilemma where legal arbitration seems too narrow and rigid, while divorce by mutual consent is too broad. As judicial divorce guidelines are about to be relaxed, it is vital that mutual consent divorce also take the rights and interests of children into account by requiring the completion of parenting plans. That is a national obligation required by the UN Convention on the Rights of the Child, which says that the best interests of children must be the primary consideration in parenting arrangements after a divorce.
In 2023, Taiwan had an estimated 29,571 mutual consent divorce cases in which the parents had minor children. If the cost of completing a parenting plan is approximately NT$5,000, the total cost would amount to about NT$150 million — a scope that the above-mentioned talent pool and the National Treasury Administration should be able to handle.
Looking back to 20 years ago, if Chiu’s mother had been granted custody of her daughter after the divorce — or if there had been more appropriate planning surrounding Chiu’s parental guidance — she would be 24 years old by now. She might have been a college graduate, contributing to society with her talents and experiencing the joys of youth.
Chen Jwu-shang is a professor at National Kaohsiung Normal University’s General Education Center.
Translated by Kyra Gustavsen
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