Whose Best Interests? Custody and Access Law and Procedure
Osgoode Hall Law Journal, Vol. 48, No. 2, 2010
40 Pages Posted: 23 Mar 2010 Last revised: 21 Jun 2011
Date Written: March 16, 2010
“Whose Best Interests?” compares the law of custody and access disputes with the procedure used to resolve them, and argues that there is a fundamental contradiction between these two things. The former focuses on the interests of the children involved to the exclusion of all else. The latter, however, is essentially designed to protect the best interests of the adult parties to the dispute. The article concludes by considering two alternative reforms which might resolve this contradiction.
Part I shows that the law instructs decision-makers to choose the outcome which is best for the child to whom the dispute pertains. This “best interests of the child” standard is the golden thread running through custody and access law across the western world. It is also the premise of almost all the normative scholarship about these disputes. The best interests standard makes custody and access a unique area of our law, insofar as the litigants in these disputes (the parents) have no legitimate rights or interests in the outcome. The only legally relevant interests are those of the children involved, who are almost never parties to the dispute. This distinctive characteristic of the law should lead us to ask whether the applicable litigation procedure, likewise, puts the interests of the non-party child first.
Part II answers this question in the negative through an examination of custody and access legal procedure. I will ask (i) who decides if the procedure occurs, (ii) whose evidence predominates during the procedure if and when it does occur, and (iii) who decides when the procedure ends. I argue that there is a single answer to all three of these queries: “the adult parties.” Thus, while custody and access law is focused entirely on the best interests of children, in custody and access procedure it is the best interests of parents which predominate. While the law is distinctive in its exclusive valorisation of a non-party’s interests, custody and access litigation procedure is fundamentally akin to other civil litigation – the parties are in control.
In Part III, I will begin by arguing that this inconsistency is a problem which is worth resolving. If we intend for adults to have the rights and interests in parenting outcomes which their control of the procedure implies, then we should make these rights and interests explicit in our law. If on the other hand we really do mean to put children first, then we must design a procedure which reflects this intention. One way to resolve the inconsistency would be to change the law to recognize parents’ interests or rights in parenting outcomes. This position is not entirely without precedent in the literature, and was explicitly endorsed by an American Law Institute proposal in 2002.
However, the near-consensus which supports the “best interests of the child” principle in our law suggests that the more viable reconciliation is to reform the procedure so that it too puts children’s interests first. The procedural status quo empowers adult litigants in ways which are often work to the detriment of their children. This portion of the paper will show how and why this is true, before tentatively suggesting possible reforms.
A procedure which puts children first must be premised on awareness of the benefits and costs of custody and access litigation for the children involved. The benefits of custody and access litigation for children, I will argue, are less significant than one might assume. The costs, on the other hand, can be very substantial. There are several important behavioural and legal reasons why separating parents may not conduct custody and access litigation in a manner which optimizes the cost-benefit balance for their children. For example, our child support laws may incentivize parents to make custody claims which they do not actually believe to be consonant with the best interests of their children.
Finally, I will suggest possible reforms to align custody and access decision-making procedure with the best interests of the children involved. I will argue that procedural reforms in the interests of the children can be made in three areas. By reforming our civil procedure rules about (i) when and how parenting litigation can be curtailed, (ii) how the litigation is conducted, and (iii) whether children’s voices are heard in the process, we can and should create a procedure which is consonant with the law’s noble aspiration to put children first.
Keywords: Children's Law, Civil Procedure, Custody and Access, Dispute Resolution, Empirical Methodology
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