The Primary Caretaker Presumption: Canadian Perspectives on an American Development

The practice of favoring the primary caretaker when ruling on child custody disputes is evaluated from a Canadian perspective with regard to legal reforms in WVa & Minn that involve this notion. It is suggested that this practice does not improve the custody resolution process, & that the reasons offered in commentaries & jurisprudence to support a primary caretaker presumption are doubtful. After sketching the primary caretaker rule for both states, along with the justifications written by various courts, arguments supporting & challenging the rule are assessed, & subsequent case law developments from the rule, are reviewed. The US innovation represented by the reforms this rule has created has apparently not spread to other countries. Although the basic principle of awarding custody to the primary caretaker may be rational, there exist a range of factors that could disqualify such an award, with the end result that this principle is no different than any other speculative custody principle. J. Sadler