Full bibliography

Is litigating the best interests of a child a contradiction in terms? This portfolio dissertation asks this question with regard to child custody and access disputes, in which separated parents contest for the rights and responsibilities of parenthood. It is axiomatic that children's interests are doctrinally supreme when their parents litigate about them, but do civil procedure and settlement practices in these cases also put children first? The dissertation responds to this research query using quantitative and qualitative empirical methodology. It draws both on a statistical analysis of reported cases and on the author's interviews of family law professionals in Toronto and New York City. The empirical findings are contextualized in a review of the relevant doctrine and scholarship from the legal and mental health disciplines. The first two articles make positive and normative claims about custody and access litigation in developed common-law jurisdictions; the remaining three focus on the settlement-seeking procedures which family courts apply to these cases. The Conclusion to the Portfolio draws from the articles to argue that, while litigating the best interest of a child is not a contradiction in terms in every custody or access case, the contours of the existing system are more reflective of adult interests and resource constraints than they are of children's interests. A family court is necessarily a civil justice system in the common law tradition, and can therefore only ever be a weak and inefficient servant of children's interests. However, the Portfolio does call for a cost-neutral procedural reform in the shape of a "grand bargain" between judges and parents. If parents yield power to judges within the adjudicative courtroom, and if judges in turn yield power to parents within the settlement-seeking conference room, the system will be brought more in line with its noble aspiration to pursue the best interests of the children involved.