Participants were given a handout that included the following information and task.
On the following page is a list of criteria that judges could use in making these decisions. First, please read through these criteria, which have been identified as being in the "best interests of the child."
What we would then like you to do is to indicate, from your personal point of view, which of these criteria are:
Prior to discussing their rankings of the criteria, participants were asked the following questions:
We will discuss the participants' responses to these two questions first.
Everyone agreed that the best interests of the child is a reasonable approach to take in determining parenting arrangements. Participants supported this view for the following reasons:
No one expressed any concern with this principle being applied by judges and courts in their decisions as the primary consideration. A universal sentiment expressed was that the needs of children must come first in situations when marital relationships break down and parents, as much as they might have their children's interests at heart, cannot resolve their differences.
After probing, a few participants did state some concerns that parents themselves were of secondary importance; nonetheless, it was in the best interests of the child for the courts to take into account the impact of the decisions on both the mother and the father as well as the extended family.
The following lists the criteria in rank order of importance as assigned by the participants. Importantly, there is no difference between men and women regarding the top 5 criteria.
Before we discuss each of the criteria in detail, there are some general observations that need to be made about the overall ranking.
Quite a few participants said they had difficulty in attributing different levels of importance to the criteria because they felt that all 15 on the list were important issues in the consideration of parenting arrangements.
There were different types of criteria on the list-some were broad and general whereas others were more specific, dealing only with one or two aspects of a particular parenting or child-related issue. Generally speaking, participants said they tended to assign greater importance to the broad general criteria than to the specific criteria. Their rationale was that the basic idea of the more specific one was already contained in the broad general statement without it being explicitly stated. This containment principle then drove the relative rankings of the specific items lower in each case.
Most participants considered Criteria 12 and 4 to be complementary. These two criteria were seen as connected, albeit dealing with slightly different aspects of parental responsibilities (which we will discuss in more detail later in this chapter). Generally, participants felt that in parenting arrangements, people should first demonstrate what arrangements they would make for their children. This takes into account all aspects of their lives now and in the future (Criterion 12) as well as how they intend to carry out these plans (Criterion 4).
There were two criteria that dealt with the gender of the parents, one explicitly (Criterion 10) and one implicitly (Criterion 15). Both of these criteria show up on the overall ranking as being considerably less important. Specifically, Criterion 10 was ranked thirteenth and Criterion 15 was ranked fourteenth.
This ranking disguises the fact that most participants had strong feelings about both these items and the role that each should or should not play in parenting decisions.
Participants felt strongly that the current perceived gender bias in parenting arrangements had to be removed from the system. However, they rationalized the lower ranking they assigned to these criteria in the following way. Many of them chose Criterion 12 and Criterion 4, which deal with the parenting plan and the ability of parents to execute the plan. These two criteria were seen to afford both parents a level playing field and to remove any presumption that either would be a better parent based on either their gender or their past role in caregiving.
Criterion 12: Arrangements that foster the child's emotional growth, health, stability and physical care at every stage of the child's development
There were a number of participants who commented that this particular criterion embodied the "best interests of the child" concept-it addressed the provisions parents must make for the short-term and long-term needs of children. It was seen to both define what every child needs at a minimum and the role and responsibility of parents to their children.
Quite a few participants saw this criterion as implicitly:
- Involving both parents (i.e., the word "arrangements" implied that both the mother and father were involved in working out the details for their children's welfare) as it should be because both parents have a role and responsibility, and both bring different and important things to a child's life and need to be recognized as such.
- Being about how children will be nurtured.
All the factors included in this criterion are seen to ensure that a child will grow up to be a well-balanced adult. Contributing to this goal are:
- The words "growth and stability."
- The reference to "every stage of the child's development," which recognizes that children's lives are not static and there will need to be adjustments made at various developmental stages.
Many felt that this criterion was analogous to or went "hand-in-hand" with Criterion 4. The slight distinctions between the two are seen to be:
- Criterion 4 takes into account the "ability" of the parents, whereas Criterion 12 deals with the arrangements or agreements of parents for what is needed for their children.
- Criterion 12 seemed to participants to be more oriented towards the emotional needs of children, relative to some of their other fundamental needs.
Criterion 9 :A proven history of family violence
Given that this was the second highest rated criterion, it is clear that most participants believed this was an important aspect of family relationships that must be considered in future parenting arrangements. However, different participants interpreted this criterion differently to arrive at this decision.
There were some who interpreted this to be about physical violence directed against the other parent and the child or only directed against the child. Under this interpretation, participants felt the child was at risk and needed to be distanced from the "violent" parent for the following reasons:
- Every child has the right to childhood without fear or suffering.
- Violence generates violence. Children raised in a violent family environment are at risk of themselves becoming violent, both now and as adults.
- Violence directed at children is very costly for society, manifesting itself in such ways in childhood as low self-esteem; delinquency; inability to cope with life, school, and friends; and in later life, producing dysfunctional adults.
However, there was some disagreement among this group regarding the future role of violent parents in their children's lives. Some felt that these parents had lost all rights to be involved with their children. Others did not feel that these parents should be entirely "cut out" of their children's lives (i.e., they should still be allowed to make decisions that affect the well-being of their children and to see them, albeit under strictly supervised circumstances).
There were others who interpreted this to be about violence between spouses and not directed at children. Under this interpretation, there were several different views about what the impact of this should be on parenting arrangements:
- Most felt that even though it was not directed at the children, they were nonetheless just as affected by the "poisoned" environment emotionally and were equally at risk as the parent on the receiving end of the violence. Thus, these individuals shared the views of those who had interpreted this criterion to be about violence towards children.
- Some felt that because the violence was between the spouses that, as much as it was not the best environment for children, this should not be weighed as heavily in decisions about parenting arrangements as if the children themselves were the victims.
- Some also argued that in the circumstances surrounding a marital breakdown, tempers flare and people lose control-their whole lives are disintegrating around them. Therefore, for this criterion to be a consideration, they felt the emphasis had to be on the word history:
- It needs to be demonstrated that the violence is pervasive, and not what some participants see as often just an unfortunate part of marital breakdown.
- It needs to be demonstrated that there is reason to believe the violence would continue once the parents are no longer together (the view stated by some is that people change once they are apart and time has intervened).
In addition to how some participants interpreted the word history in this criterion, as discussed above, there were several other interpretations of this word which led to differing views on this criterion:
- A few participants were concerned that this criterion would allow the past of individuals who may have demonstrated this type of behaviour some time ago (but not in recent years) to be considered in parenting arrangements. For example, how would this criterion apply if the behaviour took place 20 years ago?
- Others were concerned that it did not seem to make any provisions for looking at the factors that led up to the violence (e.g., whether the violence was drug or alcohol-related), or if and how the underlying causes themselves have been dealt with. Participants said that they were not condoning violence, but any mitigating circumstances that led to the violence also needed to be examined.
- A few participants interpreted this criterion as including extended family and questioned this aspect in decisions regarding parenting arrangements between a mother and a father.
One counterpoint to this, mentioned by a number of participants (most of whom interpreted this criterion to be about the nuclear family only), was that if there were to be regular contact between children and a relative with a history of family violence, then this type of history should be considered.
What is "Family Violence"?
There was some discussion about what participants believed constitutes family violence and again, there were differences of opinion:
- Some participants interpreted this criterion as referring to violence against a spouse only. Others interpreted it to be violence directed at both a spouse and children or directed towards a child, the latter most likely because of the context (i.e., Best Interests of the Child).
- Most participants felt that violence can take many forms other than physical (e.g., emotional and psychological), and that these other forms are as harmful or potentially more so to children's equilibrium. However, some participants said that as the criterion is currently written, they only inferred physical violence and not the other forms because they would label those as "abuse" rather than "violence."
Does a History of Family Violence Have to be Proven/Types of Proof
The majority, both men and women, believed that a history of family violence must be proven for the courts to give it any consideration in determining parenting arrangements. They felt very strongly that it cannot be one parent's word against the other:
- It is easy for one parent or the other to make false allegations during divorce proceedings in general, and particularly in an acrimonious divorce.
- False allegations of this sort could be used by some parents (particularly women) and their lawyers against the other parent (mostly men) to gain custody of children and to increase both financial settlements/support payments for mothers and fees for lawyers.
- Under the current system, there are no perceived repercussions for the parent making false allegations. Even if the charges are later withdrawn or proven false, there are no charges laid or penalties against the accusing parent, often the mother, for making the false allegations.
- Participants felt that the accused parents, mostly fathers, come out as losers in this situation, even after false charges have been withdrawn or the parents have been cleared. This type of situation forces a parent to defend himself against these charges at great personal cost, both emotionally and financially. He has no choice if he wants to see and be involved with his children. Participants also felt that even after an allegation has been proved false, fathers not only have difficulty recovering from this ordeal, but often still come out as losers in the eyes of society and, some fear, in the eyes of their children.
Some participants, albeit a minority, said that even a "hint" of family violence, regardless of the outcome in court, has to be considered in the judge's decision-making on parenting arrangements. Notably, the number of women and men in this group was equal.
We detail below what participants considered to be "proof" of a history of family violence and subsequently, some of the arguments participants put forward about why they were uncomfortable in accepting that type of proof. There was no consensus among participants as to what the courts should accept as proof.
- Some participants felt it should be left up to the courts to decide (i.e., what standards are acceptable in a court of law).
- Convictions of family violence.
- Police reports and records.
- Reports from social workers.
- Medical records.
- Records from shelters.
- The testimony of several people (e.g., neighbours).
- The testimony of a child when obtained by a professional, such as a psychologist or a specialized educator.
Participants expressed a number of concerns about these types of "proof." Most of these concerns focussed on individuals' abilities to provide these levels of proof given that:
- Much of family violence happens behind closed doors and there are no witnesses.
- Some people are reluctant to report incidents of family violence officially or unofficially.
- There is a perceived bias in the legal system favouring women over men in domestic disputes.
We discuss each of these more specifically.
Participants believe that some women who are the victims of family violence do not report these incidents at all, or not until it has been going on for a long time. Further, because they either blame themselves or are ashamed of the situation, participants believe that they also do not report or even discuss their situations with professionals, relations, friends or neighbours. This was also a general observation made about the behaviour of men who are the victims of family violence.
As a consequence, participants argued that in a number of cases, there is limited proof of family violence in the first place, let alone proof of a history of family violence. Given this, some further argued that it was unreasonable to require a conviction as proof of family violence.
- The concerns expressed with establishing police records as a standard in these cases is seen to put both men and women at a disadvantage.
- Women or mothers, since they do not report these incidents to police.
- Men or fathers, since in cases of domestic disputes the police are said to automatically accept a woman's word and to lay charges against a man. Presumption of guilt and a police record precedes an investigation of the charges.
Criterion 1: The opportunity for the child to maintain a strong and stable relationship with both parents
The majority of participants believed it is important to give children the opportunity to remain involved with both parents.
- The parents are separating or divorcing, not the children, and participants feel it is important for children to understand that ending the marriage does not mean that the parents end their relationship with, and responsibilities for, the child.
- While a two-parent household is considered to be the best environment for children to thrive, the involvement of both parents, even if they are not living under the same roof, is the next best thing for children.
Participants said children have the right to "strong and stable relationships with both parents," and the right to get to know them. Many saw it as an important need in children's lives to ensure their well-being.
- It is best for children to feel loved by both parents.
- A child needs role models and the different characteristics, views and skills provided by each parent during the different phases of childhood. The perception is that men and women offer different but equally important viewpoints on life and that children are best served by having balanced views in their lives.
- A stable relationship with both parents is thought to "anchor" children and to aid in preparing them for adulthood and a responsible place in society.
Some participants also interpreted that a "stable relationship" would include the following.
- Regular contact with both parents and possibly including some sort of split living arrangements for the children.
- Parents would enforce the same set of rules so that children are not confused about what is to be their "expected" behaviour when either spending time with the mother or the father, or living with one parent or the other.
On a parental level, participants also felt this was an important criterion because it explicitly states that both parents have a role to play in their children's lives and have responsibilities to their children. This is a positive statement for both men and women.
- It is the perception that the "feelings" of fathers are rarely considered in decisions on parenting arrangements, which is considered to be unfair.
- For mothers, it underlines that fathers also need to be considered and are responsible for the needs of their children.
Criterion 4:The ability of the parent(s) to provide guidance, education, the necessities of life and other special needs of the child
The majority of participants considered this to be an important factor because, like Criterion 12, it takes into account the fundamental needs of children and the basic role and responsibility of parents to ensure that these needs are met.
There were, however, a number of different interpretations of the essence of this criterion.
- For some participants, the "foreground" or the focus of this criterion was on children's needs for "guidance, education, the necessities of life and other special needs." For others, the focus was more on the parents ability to provide these things. Importantly, those who saw the focus as being on children's needs were more likely to rate this criterion as "very important" than did those who perceived that the focus was on the parents.
- In the context of this particular criterion, participants perceived the word "ability" to have different meanings and emphasis.
- Most participants interpreted this word as meaning the "financial" resources to pay for the "basic" things a child needs such as shelter, food and education.
- Some also saw this word as being about the "willingness" of the parents to meet their obligations to their children.
- Quite a few also interpreted it to mean the "capabilities," "talent" or "skill sets" of parents.
Slightly more women than men, interpreted "ability" as primarily referring to financial resources and, thus, some women (a minority) were less likely to rate this criterion as "very important." They said that while, on one hand, they recognize that money is required to pay for the basic needs of children, on the other hand they were concerned with this interpretation of the word "ability" at two levels.
- They felt it made for inequality between parents in front of the court because one parent, often the father, had greater financial resources than the mother. Thus, their perception was that it would put women at a disadvantage.
- The financial aspect of a child's upbringing would overshadow the importance of parenting skills and obfuscate the more important issue of who potentially is a better parent in a given situation.
Others, both men and women, who saw financial means as a prerequisite but also interpreted ability to be about the other things we discussed, felt this was a very reasonable and necessary consideration in determining parenting arrangements. They further argued that it was a "fair" approach, giving both mother and fathers an "equal opportunity" in how they would individually or together accomplish the arrangements they had put forth in Criterion 12.
Some participants said that this particular criterion provided the courts with a great deal of "leeway" in decision-making because of the types of needs of children that were included (and this was also partly presented as an argument that there was no apparent gender bias built in to this criterion).
- "Guidance" was perceived to be an "almost ethical thought" whereas "basic needs" were thought to be "monetary."
- One parent could be perceived to have a better sense of guidance, while the other has a better sense of how to meet the basic needs of a child.
- One parent could be perceived to have more of an emotional bond with a child versus the other who has the money without the bond.
While many participants felt this criterion deals with some important concepts, particularly because it is the only one in which the need for "guidance" of children is explicitly recognized, some also expressed discomfort with the criterion as it stands. They expressed the following types of concerns.
- It needs to be more clear about what sort of criteria judges will be looking at within it.
- Some participants were uncomfortable with allowing the courts to decide:
- Which parent is able to endow the children with a more ethical or moral background.
- That one parent doesn't have enough money and so that parent should not have any rights over his or her children.
Criterion 6: The ability of the parents to cooperate and communicate on important issues concerning the child
Participants felt strongly that if there is no co-operation or communication between parents, children invariably suffer-separation or divorce is hard enough on children without the continued stress associated with parents who cannot get along afterwards.
Quite a few participants commented that the courts should consider very carefully the parents ability to co-operate on any issue for the good of their children.
- It is important for children to feel that both parents share the same point of view in relation to decisions about them.
- Children must have the same "guidelines" from both parents to reduce potential confusion.
- It is easier for children to get needed support from either parent when there is relative agreement on child-rearing issues between the two parents.
The general feeling expressed by participants is that the ability of parents to communicate properly is a necessary first step to being a parent after a separation or divorce. Notably though, some participants feel that the main reason that parents separate is because they cannot communicate, so it is difficult to imagine that they will be able to communicate better after a separation or divorce. In this regard, quite a few participants felt that mediation had a role to play in helping parents after a divorce and through transitional periods.
Criterion 14: The personality, character and emotional needs of the child
Participants felt that every child is different and therefore all three of these aspects must be taken into consideration when deciding what is best for the child.
One perceived aspect of this is that after a separation or divorce, a particular child may be better suited to live with one parent rather than the other, even though the "non-custodial" parent would still share in the child's development and provide emotional support. On a more general level, it was stated that, while both parents together can help bring out the best in their children and provide for their mental well-being, one parent may have more of an "emotional" connection with the child and should assume the primary role in the child's life, at least initially.
Participants also felt that there is another aspect that should be considered when decisions are made about living arrangements. It is their perception that there are certain situations, for whatever reason, where a "personality" clash between a parent and a child does not allow for a "harmonious" relationship between the two.
The problem that quite a few participants perceived with this criterion was the ability of the courts to evaluate this objectively, short of psychological assessment of children. Input from both the child and the parents may be considered, but participants felt both of these may be questionable.
- A child may be too young or immature, and open to manipulation by parents (we discuss this in more detail under Criterion 3 later in this section).
- The "objectivity" of parents in conflict after a separation or in the middle of a divorce is questionable in this area.
Criterion 13: Protecting the child from continued exposure to conflict
Most participants felt that exposing children to constant arguing and bickering between parents creates an unstable, insecure environment for children.
- It affects their psychological well-being and their ability to grow up to be well-adjusted adults.
- It puts children in the position of having to take sides between parents or to create a situation in which children are unsure how to react and are constantly confused.
- Some also felt that exposure to this type of situation can result in children adapting this type of behaviour (i.e., children see, children do).
There were some participants, albeit not a majority, who believed this was akin to family violence. They felt that verbal conflict between two parents in the presence of a child can be just as detrimental to a child's well-being as being exposed to physical violence. Another view held by this group is that ongoing conflict can escalate and turn into physical violence.
Most, however, do not put "family violence" and "conflict" in the same category.
- Since most perceived "conflict" to be arguments or disagreements between people, and thus to be "verbal" only, they did not consider this to be a threat to a child's safety.
- There are always disagreements between parents, so not only is it natural in general, but expected after a separation or divorce (e.g.,
"you didn't separate because you get along").
- "Conflict" is not necessarily a "bad" thing.
- Children's reactions to situations of conflict between parents will vary considerably depending on the personality of each child.
- Children can "learn" from conflict and develop important life skills as a result (Note: This was a counterargument to those who felt that exposure to this type of situation would always be detrimental to children).
- When separated (i.e., physically apart), parents may not be involved in as much conflict as they might have been during the marital relationship nor would they continue to have disagreements or arguments in front of their children even though they may continue to have their differences.
Criterion 11: The quality of the relationship that the child has with the parent(s)
There is considerable evidence from participants' responses that this particular criterion is too general and open to interpretation (i.e., what does quality mean and how would that be assessed?).
- Some participants interpreted this criterion as referring to the "link" a child has with one parent or the other. Under that interpretation, they felt that the continuation of this relationship should be a primary consideration in the interests of the child.
- Some others interpreted this criterion as referring to the "quality of parenting," to do with the "type" of time devoted by a parent to a child, which resulted in a lower rating.
- A minority thought this criterion referred to the "quantity of time" that had been devoted to parenting in the past. That is, they felt that the amount of time a parent had spent with a child in the past was perhaps an "indicator" of how "comfortable" or well-adjusted a child may be with the parent if he or she were to be the primary caregiver, and this too resulted in a lower rating.
Criterion 8: The willingness of each of the parents to encourage a close relationship between the child and the other parent
Most participants believed that, with rare exceptions, children love both their parents. And unless parents encourage children to maintain a close relationship with both parents, the general feeling was that this put a child's emotional development and well-being at stake.
- It was considered important for children to know that both parents love them.
- Some expressed the view that, in their experience, children often feel they played a role in the marital break-up. By having parents co-operate in this regard, they felt that parents would reduce children's feelings of responsibility for the breakdown.
- Co-operation between parents was viewed as eliminating hostile feelings between parents and allowing children to love both parents and to stay "connected" with both of them. Importantly, it is also seen to eliminate the need for children to take sides between parents.
The view expressed by quite a few participants was that children should not be used as "weapons to get back at the other parent." A few felt that given the importance of this, the courts should deal severely with parents who cannot or will not co-parent in a mature way.
Criterion 3: The views of the child
This particular criterion generated a great deal of controversy in the groups because most participants interpreted it to be about the child's input on future living arrangements.
Many participants agreed on the general principle that the consideration given to the views and opinions of children depended on their age and maturity, with the maturity of the children being considered to be far more important than their chronological age. Having said that, there was no consensus reached in the groups as to how to assess this maturity level, other than a few suggestions.
- Children should be at least 10 years old.
- It should be no different than the legal age at which children can choose which parent they want to live with (i.e., 14 or 15).
However, a large number of participants felt it was inappropriate to put children in the situation of having to choose between parents, regardless of their age or maturity.
While most participants agreed that children's wishes should be considered, they were divided on this issue.
One group strongly supported the view that children should be heard from.
- Since it is the children's futures that are being decided, the children should be allowed to speak for themselves and to represent their own interests in these types of proceedings.
- Sometimes parents are caught up in the emotional upheaval of the marital breakdown and can be "out of touch" with what their children may want or need.
- Other arguments put forward by participants were:
- Children are smarter than we think.
- Children don't lie.
- Children know where they are loved, where their home is, who is the best or better parent.
- Too often children are "left out" during divorces and this would help them feel as if they have a say in their own future.
- A few also pointed out that knowing how children feel about different living arrangements, for example, can affect how parents decide to divide or allocate responsibilities. In other words, they saw no point in placing children into a situation in which they might be "completely miserable."
Another group, representing many participants, had reservations about seeking the children's input in this adversarial type of situation, both in terms of the difficult situation they felt was created for the children and the questionable value of the children's input on decisions about their welfare.
- Where parents are in a court of law battling over their children, seeking the children's opinions was seen as placing responsibility on the children and creating additional stress in their lives. Participants felt that children love both their parents "no matter what" and do not want to hurt either of them.
- Participants also felt that children can be manipulated or influenced unduly by one parent or the other, particularly when they are young.
- Many believed that the types of decisions to be made about children are "adult decisions," and children are incapable of making these types of decisions.
- Children are motivated by self-interest, which some argued has nothing to do with best interest. For example, some participants hypothesized that if forced to choose between two parents, children would lean more towards the household
"where there is less discipline, more freedom and fun" or a more "materialistic," instant gratification environment, particularly when they are younger.
- What children want isn't always the best for them and that is a parent's decision to make.
- Because a mother and father often provide different things to children, and some days children want their mothers and some days their fathers, how are children to decide between the parents?
- Are children able to give rational answers in these types of situations? Like their parents, they are caught up in the emotions of their situations. Children are also caught up in the controversy between their parents.
A number of participants commented that there is less need for the courts to consider the views of the child when the parents have a relatively good relationship and can reach agreement on the key issues affecting their child.
When the opinions of the child are to be considered, some participants felt they should not be given in the presence of the parents, so that children remain relatively free to express their wishes.
Criterion 2: The opportunity for the child to maintain a strong and stable relationship with other members of his or her family
Participants considered it important for children to maintain relations with the extended family-grandparents, aunts and uncles, cousins, etc. These relationships provide children with a sense of identity. More importantly, these relationships were seen as providing additional love, security and stability for children in general and in the wake of a marital breakdown.
Being allowed and encouraged to interact with other family members was seen as reinforcing the idea that, although the parents have separated, they are not
"divorcing the children from the family and the circle of family love."
Criterion 7: The ability of the child to adjust to the parenting arrangement
While participants believed this to be an important issue and one that would, of course, concern parents, most felt that this particular issue would have already been taken into consideration and addressed primarily in Criterion 12. Criterion 12 deals with "arrangements that foster the child's emotional growth, health, stability and physical care."
Beyond this, quite a few participants argued that this was unfortunately irrelevant. The family's situation had already changed, which meant that children had no choice but to adapt to a new and different situation.
Some participants felt that children are resilient and adaptable and it will just take some time.
A number of participants also felt it would be difficult, in advance of "living" the arrangements, to know how well the children would adjust. They felt it was much more important to build in some mechanisms to allow for the readjustment of parenting arrangements in the event children did run into problems.
Criterion 10: Ensuring there is no preference in favour of either parent on the basis of that parent's gender
The majority believed that discrimination based on gender is unacceptable and that ensuring there is no preference based on the gender of a parent is a fundamental right. Some argued that gender has nothing to do with the rights or interests of children.
Many participants viewed gender discrimination as a concern because they believed that under the Divorce Act, women are favoured over men and fathers are too often discriminated against in custodial matters. Participants felt that gender of the parent should not be considered and there should be no presumptions that one parent is better than the other in providing proper care for their children based on their gender.
The majority of participants believed that if the courts adopted Approach 3 to determine parenting arrangements and emphasized Criteria 12 and 4, (concerning parenting plans and how these plans would be carried out) there would be a "level playing field" and the current gender bias and gender stereotyping by the courts would no longer exist.
Criterion 15: The caregiving role assumed by each parent during the child's life
The majority of participants felt that this consideration is one of the least important for the courts in determining future parenting arrangements.
- A divorce results in massive changes in the lifestyles of both parents, so weighing what they did before into the equation is not considered to be of much value. A break-up is all about redefining goals and it doesn't matter who the caregiver was in the past, it's going to change.
- In most two-parent relationships, there is a tendency for a mother and father to adopt different roles, which is not to say that either could not take on the other's role.
In essence, participants said that it is a "new start" for both parents and parents should not be favoured or dismissed because of the role they played or did not play in their children's lives in the past.
Participants raised one further point about a perceived gender bias built in to this criterion. It is usually women who stay at home with children and as a result have been favoured by the courts in the past as being the parent best able to continue looking after the children given the role they have fulfilled in the past. Participants argued that this doesn't necessarily mean that the mother is the "better" parent. Besides, even if a mother was a "stay-at-home parent," the chances are slim that she will be able to stay at home after the divorce.
As with Criterion 10, participants felt strongly that the parenting plan, and the demonstrated ability of each parent to carry out the parenting plan, should be given far more weight and consideration than the past caregiving role of either parent.
Criterion 5: The child's cultural and religious background
For most participants, this criterion was already implicitly contained in others, so it was considered less important in its own right. To reiterate:
- Criterion 12 deals with arrangements to foster the child's emotional growth, health and stability, etc.
- Criterion 4 deals with the ability of parents to provide guidance, etc.
Further, many felt that maintaining a relationship with both parents and the extended family also allowed children exposure to, and involvement in, their culture and religion.
For some participants, this was an unimportant criterion.
- This issue can be dealt with after all the other issues, which are more important because they deal with the basic needs of a child.
- Unless it was an inter-racial or inter-cultural relationship, life would continue and no special provisions would be needed.
- Children should be allowed to choose their own religious beliefs when they are older and to choose to attend services, rather than be forced to attend.