Whose Best Interests?

Osgoode Hall Law Journal, Vol. 48, No. 2, p. 287.

This article compares the law of custody and access disputes with the procedure used to resolve them. I argue 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 controlled by and designed to protect the rights and interests of the adult parties to the dispute. Despite their doctrinal centrality in custody and access law, children are usually silent and invisible in custody and access procedure. To resolve this contradiction, I propose a focus on the costs and benefits of parenting litigation for the children involved. Too much parenting litigation occurs which has more costs than benefits for them. We should curtail some of these cases, and apply the proportionality principle to others. Finally, these children should have a stronger voice when decisions are being made about their future.

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