Volume 2, Number 4, 1979
Articles
- Divorce, Children, and Custody: A Quantitative Study of Three Legal Factors - Beverly Prentice
Population data collected by the Central Divorce Registry of the federal Department of Justice is analysed for 1975 to assess the relationship between custody awards and three elements in the legal process of divorcing - legal role, grounds for divorce and the contestation of the divorce action. Results show that petitioners receive custody more often using matrimonial offence groudns as opposed to marriage breakdown grounds; and finally, respondents who contest receive custody more often than those who do not.
- Jurisdictions Over the Custody and Upbringing of Children in Canada and Their Judicial Exercise - Olive M. Stone
Recent Canadian jurisprudence reveals a disturbing pre-ocupation with the niceties of competing federal and provincial jurisdiction over children with little attention being paid to the immediate welfare of the infants. The author identifies several areas of such federal and provincial interaction: provincial jurisdiction over the guardianship of infants and the "corollary" federal jurisdiction over custody and access under the Divorce Act; provincial authority over adoption and federal powers over custody and access under divorce legislation; and provincial jurisdiction over adoption and federal authority under citizenship and immigration statutes. The author urges a de-emphasis of questions of a particular Court's status and a promotion of a comity between Judges across the Dominion in the best interests of a child.
- Children of Divorce: An Evaluation of Two Common Assumptions - Rhona Rosen
Courts have commonly held that the mother shuld be the preferred custodian when spouses separate and that divorce results in disturbed children. The author examines the psychological literature in this regard and reports on her own empirical studies in which children of divorced parents were interviewed and psychological test administered. She suggests that the "tender years" doctrine is not an appropriate yardstick to determine custody disputes, but that regard should be had to the unique circumstances of each case. The author concludes that it is the turbulence of the marriage rather than the divorce itself that causes emotional disturbances in these children.
- Joint Custody of Infants: Breakthrough or Fad? - Anita D. Fineberg
The recent widespread interest in joint custody of infants by separated parents has generated a considerable measure of controversy both inside and outside the law. The author examines the legal basis for "join custody" and all of its variants and assesses the situations in which the Courts have allowed or refused to allow such orders. She weighs the judicial experience in light of the body of current medical and behavioural wisdom and published accounts of the experiences of separated parents involved in such arrangements. On the whole, the author is favourably disposed towards joint custody but warns that its success is limited to certain parents in some special circumstanes. In short, it not the universal panacea that some of its proponents claim it to be.