An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
OBJECTIVES AND CHALLENGES FOR REFORM (continued)
In recent years, many other jurisdictions have attempted to meet similar challenges and undertaken significant reform to the law of custody and access. Many jurisdictions have moved away from the language of custody and access, and set up new regimes to govern the resolution of parenting disputes during separation and divorce. For example, both the United Kingdom and Australia have replaced custody and access with a regime based on residence, contact and orders for specific issues and special purposes. A number of American jurisdictions have also begun to replace custody and access orders with various kinds of parenting orders. Montana, for example, recently substituted the terms parenting and parenting plan for custody, and parental contact for visitation throughout its domestic relations statutes.83 Michigan has substituted the term parenting time for physical custody.84 Florida has set up a regime based on shared parenting. Washington has replaced custody and access with a regime in which parenting functions are allocated within a parenting plan. The American Law Institute recently recommended that custody and access orders be replaced with a regime that requires the allocation of custodial responsibility and decision-making authority, primarily within parenting plans.
While a comprehensive review of all of these developments is well beyond the scope of this paper, particular attention will be given to the reforms adopted in the United Kingdom, Australia, the states of Washington and Maine, and the proposals of the American Law Institute. This section will also briefly review the impact of these legislative reforms, when information is available. The paper will subsequently draw on the experience of these other jurisdictions in examining and evaluating the three options for reform.
The United Kingdom’s Children Act, 1989
In the United Kingdom, the Children Act 1989 replaced custody and access with a regime based on parental responsibility, and specific kinds of parenting orders.
Parental responsibility, which was intended to replace the idea of parental rights, is defined as
"all rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his or her property."85 Parental responsibility is acquired automatically by married parents and unmarried mothers. This parental responsibility is unaffected by any change in the marital status of parents. Unmarried fathers can also acquire parental responsibility.86 Where more than one person has parental responsibility, the Act provides that
"each of them may act alone and without the other in meeting that responsibility."87 The model is described by commentators as one of
"joint but independent responsibility: that is, either parent… may act unilaterally in meeting his or her parental responsibility for the child, without consulting the
The Children’s Act provides for residence orders (settling arrangements as to the person with whom the child is to live), contact orders (requiring the person with whom the child lives to allow the child to visit or stay with the person named in the order, or otherwise have contact with that person), prohibited steps order (stipulating that no step which might be taken by a parent in meeting his or her parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court) and specific issue orders (giving directions for the purpose of determining a specific question that has arisen or that may arise in connection with any aspect of parental responsibility for a child).89
Presumption Against a Court Order
In its general definition of the welfare of the child, the Children Act, 1989 provides that where a court is considering whether or not to make an order,
"it shall not make the order… unless it considers that doing so would be better for the child than making no order at all."90 This presumption of
"no order" reflects the philosophy of private ordering of the Act, and the bias against judicial intervention in the resolution of disputes involving children. The scheme is intended to encourage parties to settle their own parenting arrangements, without resort to the courts.91 It has restructured the relationship between private ordering and judicial intervention in a manner that now strongly favours private ordering.
Presumption in Favour of Contact
The Children Act does not establish a presumption in favour of contact. However, the courts have developed a very strong presumption in favour of contact.92 The English Court of Appeal has held that contact should not be prevented unless there are cogent reasons for doing so. It has stated that the courts should take a medium- and long-term view of the child’s development, and not accord excessive weight to short-term problems, such as the contact parent’s present psychiatric instability.93 This presumption has subsequently been confirmed by the Family Law Act 1996, which supplements the provisions of the Children Act in the context of separation and divorce. Section 11(4)(c) states that the welfare of the child is best served by regular contact with those with parental responsibility.
The Children Act includes no specific reference to the potential relevance of violence to resolving parenting disputes.94 Despite the emphasis on private ordering, there is also no reference to parenting plans.
Evaluation of the U.K. Reforms
The objective of the U.K. reforms was to promote the ongoing involvement of parents, particularly fathers, in the lives of their children after separation and divorce. It was hoped that the change in terminology would help reduce parental conflict and affirm the ongoing parental responsibility of both parents. It was hoped that the changes would bring about change in attitudes, encouraging non-resident parents to keep in contact with their children.95
Many commentators welcomed the change, and at least some evidence suggests that
"reactions to date to the change in terminology made in that Act have been positive."96 However, the Act has also been subject to a number of criticisms. For example, the definition of parental responsibility has been criticized not only for its generality, but also because it
"immediately throws one back to the rights and duties concept which ‘responsibility’ was supposed to replace."97
Research has suggested that there has not been a significant reduction in parental conflict following the reforms. There has, for example, been a dramatic increase in litigation over contact orders.
Although the number of contact orders in the first year the Children Act was in force was lower than before the Act was passed, between 1992 and 1996 the number of contact orders rose by 117 percent.98 There has also been an increase in the number of residence and specific-issues orders.99 Research has suggested that the availability of specific-issues orders may have encouraged greater resort to the courts for trivial disputes.100
Concern has also been expressed about the way in which contact has been handled. The English courts have established a strong presumption in favour of contact. A number of studies have found that both lawyers and mediators tend to view domestic violence as irrelevant in making contact orders, or that they tend to advise clients that the courts will view it so.101 The courts have also disregarded the relevance of the degree of conflict between the parents, and have cast women who oppose children’s contact with their fathers as
"implacably hostile."102 Courts have developed what they have referred to as a
"robust approach" to contact, enforcing it notwithstanding the fierce opposition of residential parents, including those parents who have been victims of family violence.103 More recently, there has been a shift in the courts’ approach, with the
Court of Appeal accepting that contact may be limited if the father presented a risk of direct physical harm to the children, or indirect harm to the child by a physical risk to the mother.104 Still, many remain concerned that the presumption in favour of contact outweighs the countervailing interest in protecting children from the harm of violence, high conflict and inadequate parenting.105
Australia’s Family Law Reform Act
In Australia, the language of custody and access was also abandoned in favour of a regime based on parental responsibility and parenting orders. The Family Law Reform Act 1995 extensively reformed Part VII of the Family Law Act dealing with the resolution of parenting disputes during separation and divorce. Although the reform was informed by the U.K. Children Act, the legislative regime includes a number of distinct features.106
The Family Law Reform Act is based on the idea of parental responsibility, which is defined as
"all the powers, duties, responsibilities and authority which, by law, parents have in relation to children."107 Parental responsibility has replaced the former powers of guardianship (long term responsibility) and custody (day-to-day responsibility). Unlike in the U.K. Children Act, the definition of parental responsibility in the Australian legislation excludes any reference to parental rights. Under the new law, all parents are vested with parental responsibility, and this responsibility remains unaffected by separation and divorce. Also unlike the Children Act, parental responsibility does not depend on whether the parents were married; rather, all parents have parental responsibility, regardless of marital status.
The Family Law Reform Act has adopted a similar regime, replacing custody and access orders with parenting orders, defined generally as an order made under Part VII of the Family Law Act dealing with the person(s) with whom a child is to live, contact between a child and another person(s), maintenance of the child, and other aspects of parental responsibility. It then defines these orders more specifically: residence orders (the person(s) with whom the child is to live), contact orders (contact between a child and another person(s)), child maintenance orders, and special purpose orders (any aspect of parental responsibility other than residence, contact or child maintenance).
Under the new legislation, a parenting order does not take away or diminish parental responsibility, unless expressly provided for in the order or, if necessary, to give effect to the order.108
Courts are to make these orders in the best interests of the child. The best interests of the child are defined in section 68F, and include a statutory list of factors that the court must consider, including the following:
- the wishes of the child;
- the nature of the child’s relationship with both parents;
- the practical difficulty and expense of a child having contact with a parent;
- the capacity of each parent to provide for the needs of the child;
- the maturity, sex and background of the child;
- the need to protect the child from physical and psychological harm that may be caused by abuse, or by being directly or indirectly exposed to abuse or violence directed towards another person;
- the attitude to and responsibilities of parenthood displayed by the parents;
- any family violence involving the child, or a member of the child’s family;
- whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
- any other facts or circumstances that the court thinks are relevant.
The new legislation inserts an objects clause into Part VII of the Family Law Act. Section 60B provides that
"the object of this Part is to ensure that children receive adequate and proper parenting…, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children."109 The Act further states that the principles underlying these objects are,
"except when it is contrary to the child’s best interests," that children have the right to know and be cared for by both parents, that children have the right of contact, on a regular basis, with both parents and any other person significant to the care, welfare and development of the child, that parents share duties and responsibilities concerning the care, welfare and development of the child, and that parents should agree about the future parenting of the child.110
The Act includes a number of additional statements of object and purpose in relation to particular provisions, as discussed below.
The Family Law Reform Act includes a number of provisions to ensure that children are protected from violence. The best interests of the child test includes specific references to violence.111 Section 68F(2) provides that the court must consider the following:
Family violence is expressly defined in the Act as
"conduct, whether actual or threatened by a person towards or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal well-being or safety."113
The Australian legislation also includes a specific provision addressing family violence and parenting orders. Section 68K provides that in
"considering what order to make, the court must, to the extent it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order: (a) is consistent with any family violence order; and (b) does not expose a person to an unacceptable risk of family violence."114
The Act includes a number of additional provisions that attempt to ensure that contact orders are not inconsistent with family violence orders.115 While the best interests of the child test requires that a court have regard to any family violence or family-violence order in making an order under the Act, section 68S provides that contact orders prevail over inconsistent family-violence orders. Section 68R provides that a court making a contact order inconsistent with a family-violence order must provide for a detailed explanation of the purpose of the contact order, the obligation that the order creates, the consequences that may follow if there is failure to comply, the reasons for making the order inconsistent with the family-violence order, and the circumstances in which the Family Law Act order may be varied or revoked.116 Section 68T also allows a court exercising jurisdiction under state law in relation to family violence to vary, discharge or suspend existing provisions for contact whether made by order or plan. It can only do so if, at the same time, it makes a family-violence order.117
Mediation and Primary Dispute Resolution
The Australian Family Law Act encourages the use of mediation and counselling services to resolve family-law disputes, in general, and parenting disputes, in particular. The Act describes these processes as
"primary dispute resolution," to suggest that these forms of dispute resolution should be used by separating and divorcing couples before seeking a court-ordered resolution. Part III of the Act governs the general use of mediation and counselling services. The basic objective of Part III is to encourage people to use primary dispute resolution (such as counselling, mediation, arbitration or other means of conciliation or reconciliation) to resolve matters in which a court order might otherwise be made, provided the mechanisms are appropriate in the circumstances and proper procedures are followed (s.14, 14A). Section 14F requires the courts to consider advising people about primary dispute-resolution methods. This duty is required of courts to
ensure that parties, at all stages of their disputes, are advised of the primary dispute-resolution methods available.118
Part VII of the Act, specifically dealing with children and parenting disputes, also includes a number of provisions encouraging the use of primary dispute resolution. As noted, the statement of object of the Act includes the phrase
"parents should agree about the future parenting of their children." Section 63B further provides that parents are encouraged
"to agree about matters concerning the child rather than seeking an order from a court." Part VII includes provisions that encourage the use of counselling. Section 62B imposes an obligation on courts and lawyers to consider advising parents who have commenced proceedings about the availability of counselling for Part VII orders. Section 65F further requires that parents attend a conference with a family and child counsellor to discuss the matter before a parenting order is made.119 The objective of the conference is to explore alternative ways of resolving the
The Family Law Reform Act includes provisions dealing with parenting plans. Under the Australian scheme, parents are encouraged and allowed to enter into parenting plans, although these plans are not mandatory. As mentioned, the Act strongly encourages parents to reach their own agreements about the future parenting of their children.120
The Australian scheme has no mandatory requirements for plan content. It simply provides that a parenting plan may deal with:
- (a) the person(s) with whom a child is to live,
- (b) contact between a child and another person;
- (c) maintenance of a child;
- (d) any other aspect of parental responsibility.
There is no requirement that the parenting plan allocate decision-making authority, nor that the plan include a dispute-resolution mechanism. The Family Law Council considered whether the legislation should provide any further guidance regarding the content of parenting plans. It was the Council’s view that, although sample parenting plans might be helpful in providing a checklist of the matters that parents would generally need to address in their plans, it was not necessary
"for the legislation to contain any pro forma parenting plans. Essentially, the form of individual parenting plans will depend on the wishes of the parents involved."121
If parents do negotiate a parenting plan, that plan must then be filed with the Court. According to section 63E, the Court retains considerable discretionary power in reviewing the parenting plan, since it will only register the plan if it is in the best interests of the child. Even if registered, the court must not enforce its provisions if it considers that it would not be in the best interests of the child.
Finally, the Australian legislation does not allow for a variation or modification of a parenting plan that has been registered with the courts, but rather, requires that the parties revoke the agreement.122 The Act then sets out the court’s powers to set aside a parenting plan.123 If both of the parties want to modify their agreement, they may apply to have their parenting plan revoked, and then enter into a new agreement. If only one of the parties wants a modification to the agreement, he or she may make an application to have the plan revoked (on the basis of fraud, duress or undue influence, or the best interests of the child).124
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