Whose Best Interests?: Custody and Access Law and Procedure

This article compares the law of custody and access disputes with the procedure used to resolve them. The author argues that there is a fundamental contradiction between the two. The former focuses on the interests of the children involved to the exclusion of everything 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, the author proposes a focus on the costs and benefits of litigation between parents for the children involved. As it stands, too much of the litigation that occurs between parents has more costs than benefits for them. Some of these cases should be curtailed, and the proportionality principle applied to others. Finally, children involved in custody and access litigation should have a stronger voice when decisions are being made about their future