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Koll, Adi Columbia University 2007 해외박사(DDOD)
소속기관이 구독 중이 아닌 경우 오후 4시부터 익일 오전 9시까지 원문보기가 가능합니다.
Over a period of almost two centuries, the Supreme Court of the United States has developed a presumption regrading parents' actions on behalf of their children. The Court first introduced a parental presumption in 1838 in the case of Jenkins v. Pye, when it announced that in the "absence of all proof tending to a contrary conclusion," it is the natural and reasonable presumption that parents intend to benefit the child as part of their discharge of a moral and parental duty. In 1979, the Court revisited its parental presumption in the instrumental case of Parham v. J.R. ; this time however, the Court determined that absent evidence for neglect and abuse, "the traditional presumption that the parents act in the best interests of their child should apply." The Court's latest proclamation of the presumption appeared in the plurality opinion of Troxel v. Granville in the year 2000, when Justice O'Connor, writing for the Court, insisted on employing the presumption that "fit parents act in the best interests of their children.". This work follows the developments of the parental pressumption through a detailed analysis of these three Supreme Court decisions, and their articulation of the parental presumption. It argues the parental presumption's meaning, role, weight, and scope have been altogther transformed (Part I), a transformation that reflects a historical change in the way the Court conceives of the American family structure and relationships, the legal concept of parental authority over children, and children's interests and rights (Part II). It then provides a critical review of the parental presumptions' development and implications in light of the changes in American family history and jurisprudence, and concludes the parental presumption has developed in a manner inconsistent with the changing realities of the American family (Part IIa) and irreconcilable with the evolution of the Supreme Court's concept of parental authority (Part IIb). Additionally, it reveals that the nature of the presumption's development reinforces a perception of childhood as a period of insignificance and irrelevance and excludes children and their unique experiences from legal discourse (Part IIc). This work therefore offers to replace the parental presumption with a vocabulary that is more accommodating to the American family structure and relationships and the Supreme Court's legal tradition, and better protects children's interests and rights. Specifically, it proposes three different parental presumptions, evaluates their pro and cons, and applies each of them to the facts of the Jenkins, Parham, and Troxel cases to assess how they would have impacted the Court's final rulings (Part III).