Child custody, access and parental responsibility the search for a just and equitable standard

Summary: Child custody and access law and policy remain among the most contentious areas of family law and family practice. A rights-based discourse dominates the field; the "best interests of the child" standard has historically reflected a struggle between mothers' and fathers' rights, with children's needs considered to be commensurate with either position. Children are viewed at different times as fathers' property, as requiring the "tender care" of mothers, and as rightfully "belonging" to one or the other parent. Unlike previous examinations of child custody and access in Canada, this paper proceeds from the perspective that the "best interests of the child" during and after parental separation are, essentially, a matter of recognizing and addressing the child's most fundamental needs in this time of family transition. These needs are, according to child development experts, best addressed by supporting parents in the fulfillment of their parental responsibilities, a goal to which social institutions such as legislatures and the judiciary are bound. Such a focus on children's needs, parental responsibilities, and the responsibilities of social institutions to support parents in meeting their parental obligations is largely absent in current Canadian socio-legal discourse. This paper aims to shift the current rights-based discourse of Canadian feminist and fathers' rights groups to a responsibility-based framework focused on children's needs.