The Settlement Mission in Custody and Access Cases
December 6, 2012 | Academic Publications
(2013) Working Paper.
This article reports on empirical research into family justice system workers, and their approach to child custody and access cases. The child custody evaluators whom the author interviewed have formal roles that appear to require analytical decision-making about the best interests of children. However, the central finding of this research is that these professionals are actually pursuing voluntary settlement between the adult parties as their primary goal. This article then proposes an explanation for this observed phenomenon, based on the evolution of custody and access law and procedure over the past 30 years. The rise of the “logic of durability” seems to offer a convincing explanation for the concerted pursuit of settlement among both child custody evaluators and judges.
Online: SSRN, http://ssrn.com/abstract=2101819.
The Settlement-Seeking Judge: A Mock Trial
September 25, 2011 | Academic Publications
(2014) Forthcoming, Journal of Dispute Resolution.
Judicial dispute resolution is common in family courts, where it usually consists of informal efforts to bring about settlement in pre-trial conferences. Many judges are especially eager to promote settlement in child custody and visitation (access) cases. This paper will critically evaluate informal JDR in parenting disputes, by asking whether and to what extent it is in the best interests of the children involved. It begins by identifying several features which distinguish custody and access disputes from other types of civil litigation, and which are relevant to the normative analysis of JDR in this context.
The paper then describes and evaluates three arguments which might be made against informal JDR in custody and access. First, one might argue that there is too much settlement and not enough neutral adjudication of civil cases in general, or of parenting cases in particular. Second, one might applaud settlement in these cases but say that the efforts of the justice system to encourage it are ineffectual or inappropriate. Third, one might approve of settlement-seeking by the justice system in custody and access cases, but maintain that the system’s reliance on judges to do this work is mistaken.
The first two arguments can be rejected , but the author argues that the third has substantial merit. This paper will conclude by arguing that facilitative mediation by non-judges appears to have significant advantages over judicial settlement-seeking as a way to resolve custody and access cases without adjudication. Assigning settlement-seeking to facilitative non-judges could revitalize both settlement-seeking and adjudication in family court.
Online: Social Science Research Network, http://ssrn.com/abstract=1898629.
Mandatory Family Mediation and the Settlement Mission: A Feminist Critique
September 18, 2011 | Academic Publications
Canadian Journal of Women and the Law, Vol. 24, No. 2 (forthcoming, 2012)
North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute. Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation. However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it. Even in the absence of formal family mediation, litigating spouses are likely to be subjected to substantial informal pressure to settle from judges and other family justice system workers. The article argues that the feminist critique might be more relevant to this “settlement mission” than it is to formal family mediation as it is practiced today.
Book Review: The Best Interests of Children – An Evidence Based Approach, by Paul Millar
July 13, 2011 | Academic Publications
Osgoode Hall Law Journal, Vol. 48, No. 3/4, p. 695
If custody and access disputes are a deck of cards, the trump suit is the best interests of the child. When separating parents litigate about how and with whom their child should live, findings about what’s best for the child are meant to sweep away the parents’ interests and rights-claims. This principle is uncontroversial, but applying it is difficult. What parenting arrangements are best for children, and how successful is the legal system in putting these arrangements in place? Sociologist Paul Millar has responded with this slim volume, the goal of which is to “explain child custody outcomes in Canada in terms of factors that predict legal behaviour and factors that are empirically associated with beneficial outcomes for children.” The empirical data in this book is a powerful and fruitful new source, but unfortunately it is not complemented by a broad or objective account of the secondary research and case law in this field.
Judicial Settlement-Seeking in Parenting Disputes: Consensus and Controversy
June 4, 2011 | Academic Publications
(2012) Conflict Resolution Quarterly, Vol. 29, No. 3, pp. 309-332
The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.
Online: SSRN, http://ssrn.com/abstract=1687268
Cost-Benefit Analysis of Family Service Delivery: Disease, Prevention, and Treatment
June 23, 2010 | Academic Publications
Research paper commissioned by the Law Commission of Ontario
A paper surveying the literature and reform options for Ontario’s family law system.
Whose Best Interests?
May 12, 2010 | Academic Publications
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.
A brief video presentation based on this paper.
The Silent Child
March 26, 2010 | Academic Publications
Canadian Family Law Quarterly, Vol. 29, No. 1, page 1. (March, 2010)
There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear “children’s evidence,” which comes either directly from the child, or from a neutral professional with child-related expertise. To assess the prevalence of children’s evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children’s evidence. Among the various varieties of children’s evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.
Canadian Divorce Law and Practice, Volume 3: Spousal Support
November 4, 2009 | Academic Publications
Edited by Noel Semple and Ann Wilton, and published by Carswell with regular monthly updates. This is the newest volume of the leading text for Canadian family lawyers.
To order, please visit the Carswell product page.
The Eye of the Beholder: Professional Opinions about the Best Interests of a Child
June 10, 2009 | Academic Publications
Family Court Review, Vol. 49, No. 4, p. 760 (October, 2011).
This paper is is based on my LL.M thesis, which I successfully defended on June 10, 2009. The Below, please find short and long versions of the thesis, as well as a 15 minute video presentation.
For an even shorter description, please click here: (Read more…)
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