Parents behaving badly: whether, in the wake of Miller-Jenkins, public policy considerations should play a role in custody decisions

Abstract

Miller-Jenkins v. Miller-Jenkins illustrates the dilemma facing courts in contentious custody disputes: when should the best interests of one child cede to society’s interests? Undoubtedly aware of this dilemma, the Miller-Jenkins court cloaked its public policy concerns under the guise of the child’s long-term interests. By analysing Miller-Jenkins as it relates to the USA and foreign cases, this article contextualises the situation, showing how courts can attempt to resolve this dilemma. Specifically, a Canadian case demonstrates how a court can assess the child’s psychological needs before reaching a decision supported by public policy considerations. Such considerations can improve courts’ decision-making capabilities.