Tuesday, November 3, 2009
Campbell: "Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study"
Angela Campbell (McGill University) has posted Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study, Windsor Review of Legal and Social Issues (forthcoming), on SSRN. Here is the abstract:
In all decisions that affect children, courts in Quebec, as in many other jurisdictions, are instructed to give preeminent weight to the “best interests of the child.” Courts have applied and discussed this standard most frequently in cases where child custody and access matters must be settled as corollary issues to a couple’s divorce or separation. While these cases have generated extensive discussion about how parents’ conduct and characteristics should be factored into the best interests inquiry, little attention has been given to questions about how parental substance dependence should affect custody and access outcomes. The lack of discussion on this issue is conspicuous, given the relative frequency with which custody issues involving addicted parents arise before Quebec courts.
This paper seeks to make a contribution to filling this gap in the family law scholarship within Quebec civil law. It examines how courts in Quebec factor a parent’s alcohol or drug misuse into the best interests analysis when called upon to settle custody or access matters, and questions whether greater openness should be shown to custody and access claims advanced by addicted parents. To this end, the paper begins by contrasting the way that the medical community understands and evaluates addiction with the approach to this issue undertaken by family law courts. Juridical - specifically, judicial - perceptions of addiction are then explored through an analysis of Quebec family law cases that have considered this issue in the context of custody and access claims. The judicial analysis and discourse emerging in these cases reveals an appreciation of substance dependency differs considerably from that presented in the medical literature. Last, this paper questions whether legal outcomes might benefit by relying more fully on medical interpretations of addiction. It considers whether it is possible to recognize addiction’s physiological aspects in deciding custody and access claims, in particular, by acknowledging the necessity of rehabilitative treatment for this condition. Accordingly, it explores the relevance, and practical and moral implications, of treatment orders for parents coping with addiction who seek custody or contact with their children. This analysis ultimately concludes that such orders are feasible, yet would only be appropriate once a court has sufficient awareness of the accessibility of appropriate treatment resources in each case and for the particular parties concerns.