FOCUS GROUPS ON FAMILY LAW ISSUES RELATED TO CUSTODY AND ACCESS
Participants were asked to review three models for parenting arrangements following a separation or divorce, and were then asked to choose the arrangement they think should be used.
Approach 1 (Approach currently used in Canada)
The Divorce Act states that the parent who has custody of a child is responsible for that child's care and upbringing. In the case of a sole custody order, the most common order, the parent with sole custody is responsible for providing the child with a home and making decisions about things like education and health without having to involve the other parent.
The parent who has access has "visiting rights" and the right to make inquiries and be given information on the child's health, education and welfare.
It is also possible for courts to make joint custody orders but these are the exception. In this type of arrangement, both parents participate in making decisions regarding the child. The courts will only grant joint custody orders when parents get along well enough to make these important decisions together.
In the second approach, even after a divorce or separation, each parent would continue to have all the duties, powers, responsibilities and authority that all parents have. Both parents would share all the rights and responsibilities of raising the children equally, or almost equally. The child would live with each parent for an equal or near equal amount of time and both parents would have equal authority to make decisions about child related matters. One parent could not make major decisions about the child without the consent of the other parent. Courts would be a last resort to resolve disputes that could not be settled by the parents.
In Approach 3, even after a divorce or separation, each parent would continue to have all the duties, powers, responsibilities and authority that all parents have. However, this would not mean that living arrangements for the child or decision-making authority have to be shared equally between the parents. Different parental responsibilities would be identified and allocated between the parents in a flexible way.
Parents could share responsibilities equally when it is workable and appropriate to do so. Parental responsibilities might also be divided in some other way between the parents or given exclusively to one parent if that best meets the needs of the child. If parents are unable to work out the division of responsibilities together, this would be done by the courts.
In this chapter, we discuss:
The principles that participants brought to bear in their assessments of the parenting arrangement options and in determining the most important criteria for the best interests of the child.
The preferences for parenting arrangements.
- The perceived advantages and disadvantages of each option.
The main values and beliefs behind the views expressed on parenting arrangements by the groups can be divided into three broad categories:
- The well-being of children.
The obligations/responsibilities of parents.
- The fairness to both parents.
We elaborate on each of these below. In relative terms, participants seemed to apply far more weight to the well-being of children and the obligations and responsibilities parents have towards them than they did to fairness to both parents.
The Well-Being of Children
Children should have a stable and secure life generally, and particularly after parents separate or divorce.
Children should have regular involvement with both parents, unless a parent has been shown to be unstable or unreliable.
- Children's well-being (short-term and long-term) should be the major consideration in the decisions made by parents after separation or divorce.
The Obligations/Responsibilities of Parents
- Both parents should have responsibility for the welfare of their children-financially and emotionally-even after a separation or divorce.
- Parents should be obliged to share the responsibility for the well-being of their children after separation or divorce.
Fairness to Both Parents
The exceptions to the following principles would apply in situations where a parent has been shown to be unreliable or unstable.
Both parents should have the right to be regularly involved in their children's lives after a separation or divorce.
- Both parents should have the right to be involved in making decisions that concern the welfare of their children, particularly major decisions.
PREFERENCES FOR PARENTING ARRANGEMENTS
The majority of participants were not comfortable with the status quo-only about one in ten favoured maintaining it while the rest supported making changes on how parenting arrangements are arrived at.
Of those who supported changes, the majority (two-thirds) favoured the parenting arrangement described in Approach 3. The others were split between Approach 2 and "not sure" which approach would work best.
Importantly, men and women were not different in their choices and the preferred approach.
As we've stated, the majority of participants preferred this approach to parenting arrangements. It is seen as the approach that best:
- Keeps the rights of children as paramount while still giving full responsibility and decision-making authority to both parents.
This approach explicitly states that both parents have a role to play in their children's lives in terms of:
Duties and responsibilities.
- Power and authority.
As such, it is not seen as marginalizing either parent or as suggesting that one parent's contribution to the well-being of children was more or less important in the past or will be in the future.
This approach is seen as treating both parents equally as responsible, mature adults with the best interests of their children at heart.
This is also seen as supporting the principle that children need and are entitled to have both parents in their lives.
Another perceived advantage of Approach 3 is that it does not establish rigid rules for parental roles, thus allowing parents to identify:
- What is generally in the best interests of their children, on the assumption that parents best know their own children and their needs.
- What role they can reasonably play in their children's lives by allowing for each parent's individual circumstances (e.g., financial, job-related, living arrangements, lifestyles) and their abilities (parenting skills, strengths and weaknesses, personal interests and children's interests, etc.).
Participants felt this approach recognizes that:
Not all marital relationships were the same in terms of the roles played by each parent in the lives of their children.
- There are different circumstances leading to a separation or divorce.
- Roles played by each parent in the past may not be the same role they want to or can play in their children's lives in the future.
Under this approach, arrangements can be changed and renegotiated by parents over time, as either the need or circumstances warrant for the children or the parents. Of all the parenting approaches, this approach allows for the greatest flexibility for everyone involved.
Approach 3 also places the decision-making power with parents, relying on court intervention only when a dispute cannot be settled.
Children need stability in their day-to-day lives. They also need roots, a routine and consistency. This is particularly true when parents separate or divorce.
Approach 3 was felt to allow parents the greatest flexibility in determining how best to achieve this and was seen as the most child-centered approach of the three:
Parents can determine the most suitable living arrangements in the best interests of the child.
- It is the only approach that allows parents to consider the views and opinions of the children if they choose to do so.
Importantly, this approach was seen to put the "power" and decision-making role in the hands of parents who best know the needs of their children psychologically and physically.
Psychologically, this approach was perceived as "fair" and non-confrontational because:
Neither parent seems to be favoured or left "powerless."
- While it does make provision for conflict resolution, it does not automatically force a parent, usually the father, to seek legal help to defend his position or his right to be involved with his children.
The period following a separation or divorce is often a very difficult time for people. It was felt that this approach is:
Most likely to get parents to talk and to try to come to some kind of agreement about a division of roles and responsibilities; if it doesn't work it can be changed or renegotiated "once the dust has settled," without parents having to go through the expense and emotional upheaval of a court battle.
- Less likely to have parents turn their backs on their responsibilities toward their children.
Some also hypothesized that the "forced" discussion of roles and responsibilities centered on the children would result in better communication between parents, despite the emotional strain of the marital breakdown.
Participants also felt that this would avoid the child being "pulled in one direction or the other" and provide some modicum of peace in children's lives.
Concerns/Reservations with Approach 3
There was one major reservation some participants had about this approach. This approach assumes that parents can talk to one another and be reasonable immediately or shortly after a separation or divorce. As participants pointed out, this is often not the case.
Many spontaneously suggested that the availability of third party intervention (e.g., mediation) would have to be a necessary part of Approach 3 to give it the best chance of working.
There were several other concerns mentioned by a few participants:
There was some concern expressed that, given the flexibility of this approach, it could be easy for one parent to take advantage of the situation and not fulfil his or her obligations. For example, some men might change their arrangements on short notice (i.e., call their former wives at the last minute to inform them that they could not make it).
- A few saw the potential for this approach to lead to continual litigation; the parameters are so loose and open it can lead to continual battles in renegotiating roles and responsibilities.
Most participants did not prefer this option for parenting arrangements. While many said they felt the idea of "literal equality" was a good one in principle, they did not feel it was practical, workable or reasonable in general, and that certain aspects of it were not in the best interests of children. In fact, most participants saw this approach as being more about what parents may want (and even that was questioned), than what might be the best circumstances for the child.
Most participants saw a number of the positive aspects of Approach 3 also captured in Approach 2. Briefly, these were:
- Both parents have a role to play in their children's lives.
- The approach is "fair" in that it doesn't favour one parent over the other.
It is in the best interests of the children because both parents would continue to be an integral part of their children's lives.
- It will promote a greater sense of responsibility in both parents and result in greater stability for children.
Approach 2 explicitly states that parents have an equal role or almost equal role to play in their children's lives because:
Children would live with each parent for an equal or near equal amount of time.
- Both parents have equal authority to make decisions about the children.
As such, it is seen to clearly lay out the ground rules for how parents will interact and that the children will have access to both parents.
Many felt that this comes closest to co-parenting even if parents and children do not live together.
There is a sense among some participants that this approach would result in the least confrontation between parents because:
- There is a clear definition of living arrangements for the child and the authority and decision-making power of each parent. Therefore, there is no need or room for negotiation, removing some of the major "bones of contention" between separating and divorcing parents.
- It forces parents to communicate regarding the major decisions that affect their children and to encourage them to work together in the best interests of their children.
This approach is seen to be the most equitable financially. Because custody is 50/50, participants assumed that there would be no child support paid by one parent to the other. Each parent carries his or her own freight and the child "will not suffer or go without."
Further, a number of participants felt that the elimination of support orders would also eliminate the profit motive in separations and divorces involving children.
This approach is seen to "force" fathers who "have taken off" to shoulder responsibilities for their children.
Concerns/Reservations with Approach 2
Participants raised two significant concerns against Approach 2, both relating to the "literal equality" in living arrangements and decision-making.
Most participants focussed on the aspect of "equal or near equal" living arrangements. Many did not feel this was in the best interests of either the child or the parents.
Participants Concerns Regarding the Child
Participants felt that children need stability in their lives and being shifted between two homes was judged to be too difficult on the children both physically and emotionally. Many participants voiced the concern that alternating living arrangements actually creates instability-friends, possessions, rooms, schooling, etc., cannot move from one location to the other.
- Children need a routine and need consistency in their lives. This means both parents need the same approach to parenting, the same rules and procedures.
This particular arrangement was seen to be particularly problematic when younger children are involved.
Participants Concerns Regarding the Parents
- Many feel these living arrangements are only feasible when parents live close to one another.
- This type of living arrangement may be financially onerous on parents because they will need to maintain two residences, theoretically doubling the expenses on the same income.
Participants felt that parents should be the ones who make the decision about where and with whom the children should live, as in Approach 3.
Most participants believe that while the decision-making process in Approach 2 is equitable, it is also flawed because it assumes that following a separation or a divorce people can co-parent without conflict. Importantly, they support the principle (i.e., "that's the way it should be") but reject the workability of it:
Under this Approach, parents must communicate regularly on child-related matters. While it "forces" parents to work together, this approach creates more opportunities for parents who are not getting along to disagree than was seen to be the case in Approach 3. (That is, in Approach 3 parents do not have to consult one another on a regular basis, or at all, if they choose not to).
- Since one parent cannot make a decision without the consent of the other, Approach 2 was seen as potentially creating power struggles. On a practical level, this can generate negative feelings between the parents, and can also cause delays in making important decisions about the children.
This type of environment is also not seen to be in the best interests of the child.
Some participants also argued that "equal" time is not necessarily the best thing for either the children or the parents and that as a parent
"what one wants is 'enough' time so that one can develop a relationship."
This approach is not seen to have the flexibility of Approach 3 in a number of important respects. It is seen to take away decision-making rights from parents as well as their ability to make decisions in the best interests of their children:
Because it is viewed as dictating how roles and responsibilities will be shared, it does not take into account the circumstances or situations of the parents. (For example, it does not consider the parents' job requirements and how this would coincide with child-rearing responsibilities).
- It does not factor in or even allow parents to consider their ability or willingness to take on 50/50 roles.
It does not allow for any input from children, either about living arrangements in general or how much and what kind of time they might want to spend with each parent.
- It does not consider such factors as the age of the children, their maturity and their emotional needs.
Some participants felt that if both parents cannot equally hold up their ends under this approach, the children will suffer.
Quite a few participants felt that both relationships and situations change over time and any arrangement for child-rearing needs to allow for that. This is also one of the concerns participants have with this Approach-it does not appear to have any practical mechanism in place to deal with "change" or "unusual situations."
On an emotional level, some participants felt that it would be just as much of a problem to force responsibilities on some parents as it would be to take them away completely. So, while it may be in the best interests of children to have both parents actively involved in their lives, forcing this situation upon a parent who cannot cope or does not want to share the responsibility equally can potentially create a volatile situation.
Only a small minority, about one in ten, favoured maintaining the status quo. These were men and women who were separated or divorced and felt this approach had worked best in their circumstances. There were also a few participants who chose this option because it included joint custody.
While the majority of participants did not feel this is an appropriate approach in general, they did see some circumstances in which one parent needs to have both physical and decision-making responsibility for children. These are:
- When parents cannot get along.
When one parent does not want the responsibility for the children nor want to be involved in making decisions about them.
- When one parent is judged to lack the appropriate parenting skills.
When parents cannot agree on child-rearing issues.
- When parents live far apart (in another city or province).
In cases where there has been domestic violence or abuse or where there is a problem with some form of addiction, one parent needs to be looking after the interests of the children.
Another perceived advantage of this approach is that it clearly spells out the roles and responsibilities for each parent. The parent with custody is responsible for all aspects of the children's lives and the other is granted visitation rights (the right to see the children but not to be involved with them on a day-to-day basis or involved in any decisions, major or otherwise). In this regard, it was seen by some to be less confrontational than either Approach 2 or 3 because the division of responsibilities and rights of parents were clearly spelled out and no "consultation" is required.
Also, a few participants who chose this option felt that there would be less chance of ongoing litigation because of the cost associated with getting changes made to the arrangement.
Because children live full-time with one parent, this parenting arrangement was seen as providing the children with a stable environment.
Concerns/Reservations with Approach 1
Notably, the views of men and women were very similar on the shortcomings and perceived problems with this approach. It was seen by most as neither in the best interests of the child nor the parents and as contradicting most, if not all, the guiding principles that participants expressed about the well-being of children and the obligations and responsibilities of parents. Psychologically, it is seen as adding undue stress to what are already strained circumstances in the breakdown of marital relationships.
Participants also expressed the view that while the other two approaches seemed to be about adult separation or divorce, this approach was seen to "force children to divorce their parents."
Many participants felt that Approach 1 should be the approach of last resort, used only in circumstances outlined previously and definitely not as the starting point for determining parenting arrangements.
The major concerns centred on the perception that this approach sends the wrong message about what are and should be the responsibilities of both parents to their children and the role each has a right to play in their children's lives:
- It puts parents on different levels, with one parent continuing on in his or her role as parent while the other one becomes more of a visitor than a parent.
- All the burden of parenting is put on the shoulders of one parent while the other one has few responsibilities.
In effect, this approach is seen as marginalizing parents' contributions to their children and as judging one parent less adequate and less necessary to the well-being of the child. As quite a few pointed out, this is usually fathers.
This approach leaves one parent, usually the father, "powerless."
- They can only be as involved as they are "allowed" to be, not how much they might want to be.
- They have no say in major decisions or on important issues that affect their children.
The role of the "access" parent is thus perceived to be that of a "babysitter and a wallet."
Participants also felt that this approach marginalized or diminished the importance of the role that both parents have to play in the lives of their children:
- It signals that one parent is a better parent than the other, with the mother usually being singled out as the better parent of the two.
- This can create an unstable and stressful relationship between parents and children:
- It can lead children to question the emotional attachment of the non-custodial parent, usually the father, towards them.
- It can affect the children's perspectives on parental roles. The custodial parent, usually the mother, becomes an authoritarian figure, the "enforcer" of necessary rules and discipline. In contrast, the father plays the role of "Santa Claus" every second weekend.
- It suggests that children do not need both parents as role models.
The burden of responsibility ends up on the shoulders of the custodial parent, often the mother, who has no choice but to accept all parental duties.
It does not promote co-operation between parents, but rather creates a situation for either a power struggle between the two or an abdication of responsibilities on the part of one of the parents:
Because one parent can have only visiting rights, it is seen to set up a situation that allows a parent to "cop out" (e.g.,
"I only have visiting rights; I don't have to do this and I don't have to do that").
- When the custodial parent is vindictive, the access parent can lose out completely. In these situations, the police are viewed as reluctant to get involved and enforce the rights of the non-custodial parent, so there is no recourse for the parent with access.
It does not have any mechanism for dispute resolution other than to go through a lengthy, costly and emotional court battle. In the end, participants felt that both the children and the parents suffer and the only benefit is to the legal system.
This approach was also considered to be adversarial; split along gender lines. The perception of both men and women was that on-going assumptions are:
Women are good parents and must be proved/shown to be bad parents not to gain custody.
- Men are assumed not to be qualified parents and have to prove they are good fathers.
There were some participants who also pointed out that just because access parents only see their children every second weekend is not a reason to exclude them from decisions concerning their children.
In this approach, most participants agreed that one parent is a "winner"-the one with custody-and the other is a "loser" or at least wronged. In addition, most participants felt that children are the ones who suffer the biggest loss of all:
- The non-custodial parent:
- Has limited access to the children and can be totally deprived of visitation rights.
- Is relieved of most duties.
- Faces undue financial burden.
- The children are denied regular contact with, or access to, one of their parents.
Notably though, some participants felt that no one is a "winner" in this approach-the custodial parent, most often the mother, is also often a "loser" under this approach:
They have no choice but to take on all parental duties.
- While fathers are the ones most commonly paying support, in many cases, there are significant changes in lifestyles and in what parents can afford to provide their children. There are no longer two household incomes, or in the case of non-working mothers, their only source of income may be support.
During the course of the discussion of parenting arrangements, various terms, and their meaning in the context of the different parenting approaches, were discussed. These were:
- Sole custody.
- Parental authority.
For the last three, we also discussed which of the parenting arrangement approaches each term best exemplified.
SOLE CUSTODY AND ACCESS
As discussed in the previous section on parenting arrangements, Approach 1 (the status quo) uses these two terms to delineate parental rights and responsibilities. For most participants, these terms were negative as applied under the law, creating a situation where one parent has more or too much power over the other parent.
This was seen as clearly stating that one parent has all the rights and responsibilities, usually the mother.
This term was also seen as relieving one parent, usually the father, of most of his responsibilities while leaving the other parent with no choice but to accept all parental duties.
This is the time the non-custodial parent, usually the father, is allowed by the custodial parent to visit with his children.
Most participants felt this was a positive phrase, embodying the following:
- Both parents are responsible for the needs of the children (financially, and in the development of the child) and for important decisions related to the children.
- Both parents have equal access to the children.
While equal access to the children meant 50/50 living arrangements for some participants, it did not necessarily mean that kind of equal split for most participants. Some participants felt this approach would allow parents to be with their children on a more frequent and more regular basis even if the children did not live with them.
The majority of participants considered shared parenting to be a positive phrase because it implied the involvement of both parents in the lives of their children.
Most participants felt the term shared parenting described the parenting arrangements in both Approach 2 and 3, whereas some felt it best fit with Approach 2. There were also a few (mostly women) who felt it applied to all three approaches.
Those who felt it applied equally to Approaches 2 and 3, reasoned that these two approaches had participation from both parents, whether or not it was equal participation. In other words, the fact that both parents were parenting and involved with their children was far more important than whether it was on a 50/50 basis or some other arrangement.
Those who felt it best fit Approach 2 did so because they interpreted the word shared to mean an equal split down the middle between parents.
Those few who felt that shared parenting also fit Approach 1, gave the following types of arguments to support their positions:
- The non-custodial parent was no more involved in child-rearing during the marriage than they are now and each parent still contributes something to their children.
- Any involvement by both parents in their children's lives, at whatever level of involvement, is shared parenting.
In contrast, most participants stated that the only approach it does not fit is Approach 1-simply put, they felt there is only one parent looking after the children and, thus, there is no sharing of responsibilities for the children.
The term parental responsibility was seen to be neutral. With only a few exceptions, the majority said this applied to all three approaches:
In each of the approaches, there is at least one parent taking the responsibility for the children.
- In all three approaches, there is parental responsibility, albeit to varying degrees and possibly different types (e.g., in Approach 2 it is 50/50 and in Approach 3 it is negotiated between the parents).
Parental authority evoked the most negative reactions of the three phrases participants discussed in connection with the parenting arrangements. The main reason is that it is most closely associated with Approach 1.
Most participants viewed the term as meaning one parent's authority over the other and as referring to one parent's right to make decisions without consulting or considering the wishes of the other parent (e.g., the parent who has the final word).
Some participants also felt the term applied to all three models because there is authority in all three of them, the difference being who has the authority in each case (e.g., is it one parent exclusively or do both parents have it?).
A few participants did not seem to connect the term with parenting arrangements. To them parental authority was about the authority a parent has over a child.
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