An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
OPTION ONE: CUSTODY AND ACCESS (continued)
VIOLENCE, HIGH CONFLICT AND INADEQUATE PARENTING (continued)
The Divorce Act could be reformed to specifically address the problem of inadequate parenting. In order to promote the general objective of promoting children’s best interests and ensuring that children are not exposed to harmful behaviour, the legislative regime could address the circumstances in which parenting falls below a basic minimum standard, such as neglect, substantial non-performance of parenting responsibilities, emotional, psychological or substance abuse problems or some or all of these.
Both the Washington Parenting Act and the ALI proposals address this issue. Although neither expressly use the language of inadequate parenting, they both do address and define parental conduct that would limit the allocation of parental responsibility within a parenting plan. The Washington law states that the court shall not order mutual decision-making, and that a parent’s residential time with a child shall be limited if a parent has engaged in
"willful abandonment of children that continues to an extended period of time or substantial refusal to perform parenting functions."209 The Act further provides that the court may limit any provision in a parenting plan if there has been:
- (a) neglect or substantial non-performance of parenting functions,
- (b) long-term emotional or physical impairment that interferes with the performance of parenting functions, or
- (c) a long-term impairment resulting from substance abuse that interferes with the performance of parenting functions.210
The ALI proposals would allow the court to limit the allocation of parental responsibilities upon the finding that a parent
"(a) has abused, neglected or abandoned a child, as defined by state law," or
"(c) has abused drugs, alcohol, or another substance in a way that interferes with the parent’s ability to perform caretaking functions."211
Similarly, the Divorce Act could be reformed to include a reference to these kinds of parental conduct that could be considered to be inadequate parenting.
The options for incorporating a reference into the existing regime of custody and access parallel the options discussed in relation to violence and high conflict. Inadequate parenting could be included as one, some or all of the following:
Finally, the Act could also include a list of potential conditions of access, in which inadequate parenting could be identified as a situation in which some form of supervised access might be appropriate.
The choices for incorporating violence, high conflict and inadequate parenting into the Divorce Act within the existing regime of custody and access are thus very similar.
Factor in the Best Interests of the Child Test
Violence, high conflict and inadequate parenting could be listed as factors that should be taken into account when determining the best interests of the child. Although this would be a substantial improvement to the current regime, including these issues within the best interests of the child test might not be the most effective approach to ensuring that children are protected from harm. The disadvantage with this approach is that it does not specify how violence, high conflict or inadequate parenting should be taken into account. Rather, the particular relevance to be given to these issues when determining custody and access would remain within judicial discretion.
Specific Section or Subsection
Violence, high conflict and inadequate parenting could be addressed in a specific section or subsection. The text could include a general statement that violence, high conflict and inadequate parenting are not in the best interests of children, and then specify the particular way in which these issues should be taken into account.
The highest level of protection could be provided by way of presumptions. For example there could be a presumption against awarding custody to a parent who has committed family violence or is guilty of inadequate parenting. There could also be a presumption against awarding joint custody if there has been violence, high conflict or inadequate parenting.
Alternatively, the section could include a strong statement of principle that violence, high conflict and inadequate parenting are not in the best interests of children, and that a court will take these factors into account in determining custody and access. The section could provide more guidance by also stipulating the range of orders or limitations that might be appropriate in these circumstances (such as limiting sole custody, joint custody or access).
Such a specific provision has the advantage of specifically directing the attention of courts, lawyers and parties to the particular needs of children with a violent parent, with high conflict parents or with parents with inadequate parenting skills. The objective of protecting children from harm would be best advanced by an approach than included either the presumptions discussed or, at a minimum, a strong statement of principle that children’s interests are not served by exposure to violence, high conflict and inadequate parenting. Any such provision should also address the particular challenges that these issues present to joint custody and to the friendly parent rule, both of which emphasize maximum contact with both parents. The objective of protecting children from harm would be best advanced by including either a presumption or a general statement of principle against joint custody or maximum contact in situations of violence, high conflict and inadequate parenting.
Conditions of Access
Regardless of whether references to violence, high conflict and inadequate parenting were incorporated within the best interests of the child test, or as a specific section, the Divorce Act could also be reformed, within the existing regime of custody and access and without difficulty, to include a list of possible conditions of access that the court could consider. The advantage of this approach is that it specifically directs courts, lawyers and parties to consider the kinds of restrictions and protective measures that could be ordered.
Family Violence and Evidentiary Requirements
Regardless of whether references to violence, high conflict and inadequate parenting were incorporated within the best interests of the child test, or as a specific section, the Divorce Act could include definitions of violence, high conflict and inadequate parenting. It could also set out the evidentiary requirements, such as credible evidence, for a finding of violence, high conflict or inadequate parenting.
Parenting plans have become increasingly popular, and have begun to be used within the existing regime of custody and access by many child custody assessors and other family transition experts. These experts work with separating parents to reach agreement about the arrangements for the children, and then attempt to set out those arrangements in a parenting plan. The plan itself often avoids the language of custody and access and, instead, allocates the various dimensions of parenting between the two parents. Despite the increasing use of parenting plans, there is no specific recognition of such plans within the Divorce Act.
The current regime of custody and access in the Divorce Act could be amended to include a reference to parenting plans.
Several related issues would need to be addressed when deciding how to incorporate such a reference to parenting plans:
- (1) whether plans should be optional or mandatory,
- (2) what required content of parenting plans should be,
- (3) the degree of judicial deference to parenting plans,
- (4) the limitations to plans, and
- (5) the process for variation.
Optional or Mandatory?
The Divorce Act could be amended to allow parties to enter into parenting plans, or to require divorcing parents to file parenting plans before seeking a custody and access order. A third alternative would be to give the courts the discretionary power to require that separating and divorcing parents seeking a custody and access order file a parenting plan.
A mandatory scheme would be the most difficult to incorporate into the existing regime of custody and access. A parenting plan is intended to encourage parents to allocate their parenting responsibility in a way that best fits the unique circumstances of their family and children. A mandatory regime, such as the Washington Parenting Act, is intended to move away from the language of custody and access, and to encourage parents to focus on allocating their parenting responsibility in a way that best fits the unique circumstances of their children. A regime that continues to use the language of custody and access could certainly encourage parents to enter
into their own agreements. But, it would be difficult to insist that parents file parenting plans, and if the parents did not agree, to then require the courts to decide on the basis of custody and access. The idea of a mandatory parenting plan regime is to move beyond custody and access even when parents do not agree. The Washington regime, for example, requires that courts issue their orders in terms of a permanent parenting plan, and specifies the kinds of factors that the courts should take into account in allocating parenting responsibilities within such plans.
Moreover, a mandatory scheme would require a detailed elaboration of the required content of the plan, the criteria to be used in reviewing the plan, the restrictions on parenting plans, and the criteria for modification. While some of these issues might be addressed within an optional plan, as a rule optional plans have not required the same kind of statutory detail. It is not clear that such comprehensive statutory reform is consistent with, or contemplated by, this option for reform.
While there are a number of advantages to a mandatory parenting plan regime, such a regime fits better within Option Two or Option Three, and will be discussed in further detail below. Only an optional or judicially ordered parenting plan regime would be consistent with the current custody and access regime.
The Divorce Act could, then, be reformed to allow parents to enter into parenting plans, or to give the courts the discretionary power to request that parents file a parenting plan. This discretionary power might be general (for parents seeking any custody or access order), or might be made to apply specifically to applications for joint custody.212
The content requirements for parenting plans tends to be directly related to whether the plans are optional or mandatory. Optional schemes tend to have few mandatory requirements for content, while mandatory schemes tend to require more detail.
For example, the Australian scheme—an optional scheme—has no mandatory requirements for content. Rather, it 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(s),
- (c) maintenance of a child, and
- (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.
By way of the contrast, the Washington Parenting Act, 1987—a mandatory scheme—requires that a plan set out the child’s residential schedule, the allocation of decision-making authority, and a dispute-resolution mechanism.213 The Act then sets out, in some detail, the requirements for each of these aspects.214
Assuming that an optional (or judicially ordered) approach was adopted, there may still be some advantage in setting out, in a general way, the kinds of issues that a parenting plan could include. The Divorce Act could be reformed to include a statutory provision that stated that divorcing parents may enter into an agreement in which they agree on the parenting arrangements for their children, including the child’s residential schedule (residence/contact schedules), the allocation of decision-making authority (about major medical issues, education and religion), support obligations and a dispute-resolution mechanism.215 While these issues would not be mandatory, a statutory list may help direct parents’ attention to their children’s needs, and encourage cooperation in meeting these needs. In this way, the statutory provisions may help advance the educational and exhortative objectives of the reform.
Degree of Judicial Deference
If the Divorce Act was amended to recognize parenting plans (optional, mandatory or judicially ordered), attention would need to be given to the extent that courts would be expected to defer to these parenting plans. As mentioned above, under the current law, courts have the power to review private agreements at the time of divorce to determine whether they serve the child’s best interests.216 In practice, however, courts are extremely reluctant to intervene and change a custody arrangement agreed to by the parties.
In the Australian legislation (an optional parenting plan scheme), the court retains considerable discretionary power when reviewing the parenting plan. The Act provides that the plan be registered in a court, but only if the court, having considered the relevant information filed, considers it to be in the best interests of the child to do so.217 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.
A much higher threshold for review is recommended by the American Law Institute (recommending a mandatory parenting plan scheme). The ALI recommends that if parents agree to one or more provisions of a parenting plan, the court should so order, unless it makes the specific findings that (a) the agreement is not knowing or voluntary or (b) the plan would be harmful to the child. This provision would require greater deference toward parental agreements than does the existing law, which allows the court to review all private agreements to determine whether they are in the best interests of the child. However, in practice, the courts are reluctant to alter consensual parenting agreements. The ALI observes that courts
"have neither the time nor the resources for substantial examination of the divorcing parents’ agreed arrangements for their children, often resulting in only pro forma review." The ALI recommendations recognize that there may be little
value in the courts attempting to second guess the parents’ opinions about the best interests of the children. The exceptions to the general rule of deference, then, focuses the court’s attention on the issues that should be of most concern. The court must ensure that the agreement is not coerced, and that the agreement is not harmful to the child.
The ALI threshold for intervention—unless harmful to the child—is high. A number of U.S. jurisdictions have attempted to establish some degree of deference to consensual agreements, while still retaining the best interests of the child standard. For example, a number of states provide that a court shall order any custody arrangement that is agreed to by both parents, unless it is contrary to the best interests of the child.218 Under this standard of review, there is, in effect, a presumption in favour of enforcing the consensual agreement, unless the court finds that the agreement would not meet the best-interests test. This standard for review, then, is higher than Australia’s (only enforce if in the best interest) and lower than the ALI’s (enforce unless harmful).
The law should provide for some degree of deference to consensual parental agreements. If parents are to be encouraged to resolve their disputes themselves, and to enter into parenting plans, they will need to be assured that the courts are not then routinely going to intervene and set aside these plans. If courts routinely overturn these agreements, parents will have little or no incentive to undertake the often difficult negotiations of reaching an agreement on their own.
However, there is also reason to want to retain the court’s overriding authority to set aside those agreements, or provisions thereof, that are not in the best interests of the child. This is particularly true since the best interests test is, according to the guiding principles, to remain a cornerstone of any legislative reform. The approach adopted in a number of American jurisdictions of enforcing a private parenting agreement unless it is not in the best interests of the child may then represent a reasonable balance of these competing interests. Courts would generally be expected to defer to the private arrangements, unless there is a good reason not to do so.
Some legislative schemes have further identified specific limitations and restrictions that would justify a court intervening in and setting aside a parenting plan, or a provision therein. These are discussed in the next section.
- 209 These factors are included in S.26.09.191(1), (2), Parenting Act, limiting an award of mutual decision-making, and limiting a parent’s residential time with a child.
- 210 The subsection also ends with a general provision,
"(f) any other factors or conduct which the court expressly finds adverse to the best interest of the child."
- 211 Section 2.13(1) ALI proposals, supra note 26 at 210. The ALI proposals would require that a court then
"impose limits that are reasonably calculated to protect the child from harm,"and include a list of the kind of conditions or limits that could be imposed.
- 212 As mentioned above, a number of American jurisdictions require that parents seeking joint custody orders file parenting plans. See supra at notes 48-49.
- 213 Section 26.09.184(2) of the Parenting Act provides that
"the permanent parenting plan shall contain provisions for resolution of future disputes between parents, allocation of decision-making authority, and residential provisions for the child."
- 214 For example, in terms of decision-making, the Act provides that the plan
"shall allocate decision-making authority to one or both parties regarding the children’s education, health care, and religious upbringing. The parties may incorporate an agreement related to the care and growth of the child in these specified areas, or in other areas, into their plan."Section 26.09.184(4), Parenting Act, 1987. In terms of residence, the Act states that the plan
"shall include a residential schedule which designates in which parent’s home each minor child shall reside on given days of the year, including provision for holidays, birthdays of family members, vacations, and other special occasions."Section 26.09.184(5).
- 215 In this way, the inclusion of a reference to parenting plans could be modelled on the provisions in Part IV of the Ontario Family Law Act, which define marriage contracts, cohabitation contracts and separation agreements. The provisions state that a couple may enter into such an agreement, and set out the specific issues that such an agreement could (but need not) include.
- 216 See discussion supra at note 52.
- 217 S.63E, Australia Family Law Act.
- 218 Many states provide that the court shall defer to a mutually agreed custody arrangement, unless it is contrary to the best interests of the child. The New Jersey law provides that the
"the court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child."N.J.Stat. Ann S. 9:2-4(d). The Louisiana statute provides that if the parents agree on which of them is to have custody, the court shall award custody in accordance with their agreement unless the best interests of the child require a different award. La.Civ.Code Ann Art.132. Washington D.C. similarly provides that the court shall order
"any custody arrangement which is agreed to by both parents unless clear and convincing evidence indicates that such arrangement is not in the best interest of the minor child."D.C.Code Ann S.16-911(a-2)(6)(A). Some states, including Georgia, Kansas and Massachusetts, require specific findings that must be stated in writing in order to reject a parental agreement.
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