The Eye of the Beholder: Professional Opinions About the Best Interests of a Child

Abstract

This paper is based on my LL.M thesis, which I successfully defended on June 10, 2009.

When parents separate and cannot agree about parenting arrangements for their children, a state-authorized neutral party must resolve the dispute. Two groups of professionals perform this function in many western jurisdictions. The first consists of judges, who are entrusted with the ultimate decision-making authority. The second consists of custody and access assessors, who are generally psychologists, psychiatrists, or social workers and who make recommendations about parenting arrangements based on an investigatory procedure.

This paper compares the processes by which these two groups of professionals make the decisions, and analyzes the interface between them. It then presents the results of empirical research about the extent to which Ontario judges accept custody and access recommendations from social worker assessors employed by Ontario’s Office of the Children’s Lawyer. The central finding was that the judges and assessors agreed only about half of the time. Possible explanations for this finding are explored, and its significance is analyzed in the context of the existing literature.

Keywords: Family Law, Children and the Law, Custody and Access, Expert evidence, Dispute-Resolution Design