Vilken betydelse har umgängessabotage vid vårdnadstvister?
Sammanfattning: The purpose of the essay is first and foremost to give answer to two questions, the first being how seriously the court views visitation sabotage in a custody battle, while deciding who should be awarded sole custody of the child. The second question is regarding the cases where the court decides to award custody to the guardian that does commit visitation sabotage and to get insight in what interests instead get priority. The whole essay is structured around these two questions. The essay will start by presenting the important principles and laws that the court has to consider while making their decision about what guardian is more fit to be the sole caretaker of the child. The essay will then go deeper into relevant court cases, doctrine from scholars in the field, and present what the writers of the law had to say while implementing the law to gain further understanding of how it’s meant to be interpreted. While summarizing the material it becomes clear that the principle of the best interest of the child and the need for stability and continuity in the child’s life, are not terms that are easily definable, and that these principles are going to look different from case to case and from child to child, since everyone has different needs and requirements in their lives. I will thereafter present the legal development that the Swedish Supreme Court have gone through regarding visitation sabotage from 1989 to 1998 to then analyze a case from 2022 from the Courts of appeal where the court has presented many of the principles that the high court have already established while providing further clarity. The Court of Appeals elaborates in this case on how the need for continuity and stability in the child’s life can look with regards to their environment and gives examples of how these environmental factors can look. The factors in this specific case include friends, activities, school and where he has lived for most of his life. These circumstances should however not be seen as exhaustive, which in turn shows the complexity of trying to define the child’s need for continuity and stability. After this I present the conclusions I draw from the 16 2 cases that I have requested from the district courts that include visitation sabotage, to see what interests the courts determine should be the deciding factors when deciding in custody cases, and how this compares to a previous study made where the deciding factor in 66% of all the decisions that the district courts had made regarding custody were in regards to the child’s need for stability and continuity. In my findings I conclude that out of the 16 cases, in 9 of them the main interest that the court finds to be of deciding factor is the need for the child to have stability and continuity in their life, and in 9 of the 16 cases the court also finds that the guardian who is responsible for the sabotage should be awarded or still maintain sole custody. In 3 of the cases the court decided that joint custody was the best form of custody and in 4 of the cases the guardian who was the victim of the sabotage was awarded or maintained sole custody. In the last chapter of the essay I will present my conclusion and closing reflections, I will here come to the conclusion that it’s not possible to draw definitive conclusions regarding one specific circumstance in a custody case, with regards to the complexity of defining the best interests of the child and the child’s need for stability and continuity in its life. Lastly, I will critically analyze the material which I have presented above with focus on NJA 1998 s. 675 where the court specifically had to answer the question of how to view the fact that the mother had refused to cooperate regarding following the visitation time that had been established by the court. The Supreme court voted in a 3 to 2 ruling that the mother should be awarded sole custody, I consider the conclusion that the court came to in this case to be worthy of reflection with regards to what incentives this will give to future cases and with regards to whether this could be considered to align with the spirit of the lawmakers.
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