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Philosophical Foundations of Children's and Family Law$
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Elizabeth Brake and Lucinda Ferguson

Print publication date: 2018

Print ISBN-13: 9780198786429

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198786429.001.0001

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Private Ordering in Family Law

Private Ordering in Family Law

(p.257) 12 Private Ordering in Family Law
Philosophical Foundations of Children's and Family Law

Brian H. Bix

Oxford University Press

The chapter begins by clarifying what is meant by ‘private ordering’ in family law—where the primary focus is usually not on the fact of private ordering, but the question of state recognition or enforcement of private choices. Additionally, the analysis considers the distinction between agreements regarding substantive outcomes (e.g. who should have parental rights), and agreements regarding procedure (e.g. having a dispute settled by arbitration). The chapter offers an overview of the moral and policy arguments that had been raised when private ordering had been strongly discouraged (e.g. various social goods, and the protection of vulnerable parties), and the changing arguments being offered now that private ordering is more frequently encouraged, or at least condoned. Finally, the chapter will consider why some forms of private ordering (e.g. separation agreements at divorce) are encouraged, while others (e.g. co-parenting and surrogacy agreements) continue to be treated with suspicion.

Keywords:   private ordering, contract, separation agreements, co-parenting agreements, surrogacy agreements, status

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