An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
Several jurisdictions have moved away from the custody and access model, adopting a model based on parenting responsibility, parenting plans and parenting orders. Parenting responsibility is a broad concept intended to get at the range of powers and obligations parents have in relation to their children. This second model for reform would set out the range of parenting responsibilities, and allow the parties and the courts to allocate those responsibilities between the parents. The allocation of parenting responsibilities could be done by court order with a parenting order or by private agreement with a parenting plan. Under this model, there would be no presumption in advance of how parenting responsibilities should be allocated. It would, rather, contain a list of factors (presumably set out as a statement of the child’s best interests) that the parties and the courts should take into account when allocating parenting responsibilities.
This section addresses three distinct but related issues:
- (1) the definition of parenting responsibility,
- (2) the nature of parenting orders and
- (3) the role of parenting plans. It sets out the different ways in which parenting responsibility, parenting orders and parenting plans could be defined and elaborated within a reformed Divorce Act.
It highlights the choices and challenges in the design of a model based on a neutral concept of parental responsibility. And it assesses the advantages and disadvantages of this model for reform.
By way of a caveat, it should be noted that this section relies on the experience in a number of other jurisdictions that have replaced the idea of custody and access with the concepts of parental responsibility, parenting orders and parenting plans. As a result, the comparative analysis frequently borrows from jurisdictions that have not, strictly speaking, adopted a neutral model of parenting responsibility but, rather, have included references to shared parenting in their legislation. For example, the U.K. Children Act 1989 and the Australian Family Law Reform Act 1995 are both based on the language of joint or shared parenting. The Maine Domestic Relations Act also includes a reference to shared parenting as one among various types of orders that can be made. While at first glance, then, the experience of these jurisdictions might be better left to a discussion of Option Three, there is much to be gained from also looking at these legislative schemes in the design of Option Two. The experience of each of these jurisdictions may be very helpful in elaborating the scope, content and allocation of parenting responsibility under the second option for reform.237 The particular ways in which these jurisdictions have modelled their schemes on the concept of shared parenting is examined in the discussion of Option Three below. In this section, the paper uses these, and other jurisdictions, as a basis for exploring the range of possibilities for and obstacles to designing a legislative scheme based on a neutral model of parenting responsibility.238
As discussed under Option One, introducing the concept of parenting responsibility is designed to bring a more child-centered approach, to divorce legislation by directing attention towards children’s needs and parents’ responsibilities to fulfil those needs. But, unlike under Option One, in this model parenting responsibility is intended to replace the concepts of custody and access as the basis for restructuring parenting during separation and divorce. The central issue to be addressed in this section is how parenting responsibility should be defined. The text begins by examining how parenting responsibility has been defined in other jurisdictions, and considers whether the term should be given a general or specific definition.
At its most general,
"parenting responsibility" is a broad concept, intended to describe the range of powers and obligations that parents have in relation to their children. As discussed above, in the U.K. Children’s Act, for example, parental responsibility 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."239 In the Australian legislation it is similarly defined as
"all the powers, duties, responsibilities and authority which, by law, parents have in relation to children."240 The U.K. definition 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."241 The Australian definition is said
by some to be an improvement over the U.K. definition, in its omission of the term
"rights," but that it, too, suffers from the same degree of generality.242
In contrast, the Scottish Children Act, despite also being modelled on the U.K. legislation, contains a more comprehensive, and considerably less general, definition of parental responsibility. Section 1(1) reads as follows:
A parent has in relation to his child the responsibility:
The Maine Domestic Relations Act uses the language of
"allocated parental rights and responsibilities," and includes within the definition the specific kinds of responsibilities that can be allocated between parents:
Aspects of a child’s welfare for which responsibility may be divided include primary physical residence, parent-child contact, support, education, medical and dental care, religious upbringing, travel boundaries and expenses and any other aspect of parental rights and responsibilities.
Along similar lines, the National Family Law Section of the Canadian Bar Association recommendations on parental responsibilities provide a more comprehensive list of factors to be taken into account. As discussed in relation to Option One above, they recommended that the Divorce Act be amended to include a statement that, unless otherwise ordered by the court as in the best interests of the child, all parents have responsibilities toward their children. Although the CBA’s recommendation was made in relation to Option One—that is, within the existing regime of custody and access—it may nonetheless be quite helpful when considering how parenting responsibilities might be defined for the purposes of Option Two as well.243 This list provided by the CBA appears to be closely modelled after the Washington Parenting Act 1987, which defines parenting functions as
"those aspects of the parent-child
relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child." Those parenting functions include the following:
Although the Washington scheme is one that places priority on the use of parenting plans as a way of allocating parenting functions, it would be possible to use this definition of parenting functions as the basis for a detailed definition of parenting responsibility.
Assessment: General or Specific Definition?
When considering how the concept of parental responsibility ought to be defined under Option Two, it is useful to consider the U.K. and Australian experience. As noted, both the U.K. and Australian schemes include a very general definition of parental responsibility, with no elaboration of its particular dimensions. The generality and vagueness of the concept has been the subject of considerable criticism. In the U.K. context, John Eekelaar, for example, has observed that,
"parental responsibility has been one of the more elusive concepts of the Children’s Act 1989."245 The courts have been called upon, time and again, to determine the scope and content of parental responsibility. In one case, L.J. Ward observed that appeals from applications by unmarried fathers to be granted parental responsibility under the Act
"have become one of those little growth areas born of misunderstanding."246 The Australian Family Court has also observed that the definition of parental responsibility in the Family Law Act, as amended by the Family Law Reform Act 1995,
"provides little guidance, relying as it does on the common law and relevant statutes to give it content."247
There are compelling reasons to provide a more elaborate definition of parenting responsibility in a neutral model. First, a more specific definition may help promote the general objective of reducing conflict and litigation. A vague definition of parental responsibility is more likely to give rise to litigation regarding its scope and content. This may be particularly heightened in the context of a legal regime, such as that in the U.K. and Australia, that provides that parenting responsibility is shared. If parenting responsibility is to be shared between parents, then parents need to know, with some degree of clarity, what exactly it is that they are sharing. In a neutral model of parenting responsibility, there is also reason to be concerned about an overly general definition. As discussed in the sections that follow, parenting responsibility in this model is to be specifically allocated by the courts in a parenting order, or by the parties in a parenting plan.
A vague definition may also give rise to more litigation. Separating parents uncertain as to the scope and content of parenting responsibility may be more likely to seek court orders than resolve the matter themselves in and through a parenting plan. A vague definition will require that the scope and content of parental responsibility be articulated, over time, by the courts. Until such time as the meaning of the concept is clearly articulated by the courts, uncertainty over its meaning may well be an encouragement to litigate. Further, a definition articulated by the courts is also subject to change by the courts, leading to the possibility of relitigation in the future. In the short term, a certain amount of litigation will be unavoidable in light of such a major legislative reform. Courts will inevitably be called upon to interpret the precise meaning of and relationships between the new provisions. However, the more precise content that can be given to concepts—particularly one as central to this model as parenting responsibility—the more guidance will be given to courts and parents in making these orders and plans.
Second, a more specific definition may help promote the general educational objective of legislative reform to encourage and guide parents to consider how best to restructure their parenting relationships upon separation and divorce. The introduction of the concept of parenting responsibility is intended to help separating parents focus on their children’s needs and parents’ responsibilities to fulfil those needs. The extent to which this objective can be realized within legislative reform is itself a controversial question, which will be revisited below. However, it is an objective that can only be assisted by a concept of parenting responsibility that articulates those needs and responsibilities in as much detail as possible.
In this option for reform, custody and access orders would be replaced by parenting orders. This section examines the range of policy choices and challenges in the design of a legislative scheme of parenting orders. The section examines the different types of parenting orders that such a scheme might adopt, the relationship between parenting orders and parenting responsibility, and the criteria for making and modifying parenting orders, including a specific consideration of relevance of violence, high conflict and inadequate parenting in such orders.
Types of Orders
Jurisdictions that have replaced custody and access orders with parenting orders have tended to break parenting orders down into several kinds of orders. In this section, three possible models for types of parenting orders are identified. The first is based on the U.K. and Australian models of residence, contact and specific-issues orders. The second is based on the Maine model of allocated-parental-responsibilities orders. The third is loosely based on the Washington and American Law Institute models of residential-schedule orders and decision-making-authority orders.
Residence, Contact and Specific-Issues Orders
Both the U.K. and Australia have adopted a regime that replaces custody and access orders with residence, contact, and specific-issues and special-purpose orders.
The U.K. 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 that 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 which may arise in connection with any aspect of parental responsibility for a child.)
The Australian Family Law Reform Act replaces custody and access orders with parenting orders, defined generally as an order made under Part VII of the 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. The Act also includes more specific orders: residence orders (the person(s) with whom the child is to live), contact orders (contact between a child and another person(s)) and special-purpose orders (any aspect of parental responsibility other than residence, contact or child maintenance).
Allocated Parental Rights and Responsibilities Orders
The Maine legislation provides that a court order awarding parental rights and responsibilities must include allocated parental rights and responsibilities shared parental rights and responsibilities or sole parental rights and responsibilities. Allocated parental rights and responsibilities are defined as meaning that
… responsibilities for the various aspects of a child’s welfare are divided between the parents, with the parent allocated a particular responsibility having the right to control that aspect of the child’s welfare. Responsibilities may be divided exclusively or proportionately. Aspects of a child’s welfare for which responsibility may be divided include primary physical residence, parent-child contact, support, education, medical and dental care, religious upbringing, travel boundaries and expenses and any other aspect of parental rights and responsibilities. A parent allocated responsibility for a certain aspect of a child’s welfare may be required to inform the other parent of major changes in that aspect.
Residential-Schedule Orders and Decision-Making Authority Orders
A third model for allocating parental responsibility is loosely based on the Washington Parenting Act, and the recommendations of the American Law Institute. The Washington regime requires that parenting plans allocate the child’s residential schedule and decision-making authority for the child. The ALI scheme similarly requires the allocation of
"custodial responsibility" for the child (that is, physical custody and supervision of the child) and of significant decision-making authority for the child. Although both of these models give priority to parenting plans, it is possible to design a regime of parenting orders that could be based on the allocation of these two dimensions of parenting responsibility: residential-schedule orders, in which the court allocates the child’s residential time between the parents and decision-making-authority orders, in which the court allocates responsibility for making significant decisions for the
A residential schedule order has the advantage of avoiding the language of residence and contact orders, which could potentially become as emotionally fraught as the existing custody and access orders. A residential schedule order would effectively incorporate both residence and contact within the same order, by specifying the time that the child is to live with each parent. A decision-making-authority order would then specify and allocate major decision-making authority for the child, separate from the child’s residential schedule.
A fourth approach to parenting orders would be a mandatory parenting plan regime, in which all separating and divorcing parents would be required to submit parenting plans. In the event that parents did not agree on their plans, courts would then be required to issue their parenting orders in the form of a parenting plan. This is a regime that would fundamentally reconfigure the existing system, placing primary emphasis on parents resolving their own disputes through parenting plans. Courts would be required to approve the plans, and impose orders only as a last resort. As such, this option is considered further below, in the discussion of parenting plans, rather than in the current discussion of parenting orders.
In the discussion that follows, the paper explores how a regime of parenting responsibility based on three models of parenting orders could be designed.
A regime based on residence, contact and specific-issues orders does not specifically require the allocation of decision-making authority. Although decision-making authority can be included with a specific-issues order, and day-to-day decision-making follows the child, this approach otherwise assumes that parental responsibility in general, and major decision-making authority in particular, will be shared.248 In this respect, this regime of parenting orders does assume in advance that a particular parenting arrangement in which major decision-making is shared is in the best interests of children. As such, it may be the type of parenting orders least compatible with a neutral model of parenting responsibility. Further, the language of residence and contact bears a striking resemblance to the language of custody and access, and it may be that the language of these new orders could quickly become as emotionally fraught as the current language.
A regime based on allocated-parenting-responsibility orders does not presuppose that any particular parenting arrangement is in the best interests of the child but, rather, allows parents and courts to allocate parenting responsibility as they see fit. In this respect, it is an approach to parenting orders quite consistent with a neutral model of parenting responsibility. Similarly, a regime based on residential-schedule and decision-making-authority orders does not presuppose that any particular parenting arrangement is in the best interests of the child and is also, then, consistent with a neutral model of parenting responsibility. Both of these approaches to parenting orders avoid the potentially loaded language of residence and contact, which could become associated with first and second-class parenting status.
Relationship Between Parenting Responsibility and Parenting Orders
In designing a model based on parenting responsibility, it would be important to address the issue of the relationship between parenting orders and parenting responsibility. Would parenting responsibility exist prior to, and survive, a parenting order unless otherwise ordered? Would parenting responsibility follow from certain kinds of parenting orders? Or would parenting orders be required to specifically allocate the various dimensions of parenting responsibility?
The question of the relationship between parenting orders and parenting responsibility is most important in the specific context of decision-making authority. If parenting responsibility is defined as
"all the powers, duties, responsibilities and authority which, by law, parents have in relation to children," then parenting responsibility clearly includes decision-making authority over a child. And the allocation of decision-making authority is a crucial and often controversial issue when resolving parenting disputes. Attention must, therefore, be given to how parenting orders affect the allocation of this authority between the parents. Would this authority survive a parenting order, unless otherwise ordered? Would this authority follow from certain kinds of parenting orders? Or would parenting orders be required to specifically allocate this decision-making authority?
Given that one of the guiding principles of legislative reform is to provide legislative clarity to the legal responsibility of caring for children, these crucial details need to be addressed in the design of a legislative model. Failure to address these details will result in unnecessary confusion, and invariably, become the subject of litigation.
Parenting Responsibility Surviving Parenting Orders
One approach would be for parenting responsibility and decision-making authority to survive a parenting order, unless otherwise ordered. In the Australian scheme, for example,
"each of the parents of a child who is not 18 has parental responsibility for the child" and this parental responsibility continues to exist
"despite any changes in the nature of the relationships of the child’s parents."249 The Act specifically provides that this parental responsibility is not affected by the making of a residence, contact or other order except to the extent, if any, as is expressly provided in the order or is necessary to give effect to the order.
The problem with this approach, for the purposes of this second option for reform, is that it assumes that parental responsibility should be shared and, therefore, more closely approximates the idea of shared parenting of Option Three. It assumes, prima facie, that parenting responsibility in general and decision-making authority in particular are to be held by each parent, and assumes that parenting responsibility will continue to be held by each parent after separation unless a court order provides otherwise.
But, the very definition of this second option for reform is that that there would be no presumption in advance of how parenting responsibilities should be allocated between the parents. A neutral model of parenting responsibility and parenting orders—that is, one that does not presuppose that parenting responsibility is and should be shared—would then need a different relationship between parenting responsibility and parenting orders. This approach of parenting responsibility and decision-making authority surviving parenting orders will be re-examined in the discussion of Option Three.
Parenting Responsibility Following Certain Parenting Orders
A second approach that could be adopted would be one in which parental responsibility in general or decision-making authority in particular followed upon certain kinds of orders, most likely residence orders.
This approach, in which all decision-making authority followed a residence order, would be highly controversial and unlikely to help promote the general objectives of reducing conflict. The very idea of residence would quickly come to resemble the existing legal concept of custody. A residential parent would in effect have both physical and legal custody of the child. A residence order would thus become the
"winner takes all" type of order that a custody order now represents in the law. As a result, a separating parent may contest an application for a residence order, not because he or she wants the child to live with him or her, but because he or she wants to continue to participate in decision-making in relation to the child.
However, a person with physical care of a child would need authority over everyday decision-making, and should not be required to consult with the non-residential parent on such day-to-day matters. While this would most clearly need to be associated with a residence order, a person with a contact order would also need to be able to make day-to-day decisions.250
A model based on residential schedule orders and decision-making authority orders would similarly need to confer day-to-day decision-making authority to the person with physical care of the child so he or she would not have to consult with the other parent. Major decision-making authority would be allocated in a separate order. Parental responsibility would not be said to follow any particular type of order in this approach.
Parenting Responsibility Allocated in Parenting Orders
A third approach would be one in which parental responsibility would have to be expressly allocated in a parenting order. The legislation would make no assumptions about how parenting responsibility should be allocated following separation and divorce. There would be no assumption that parenting responsibility in general or decision-making authority in particular would be shared by parents, or would follow particular kinds of parenting orders. Rather, the various dimensions of parenting responsibility, including decision-making authority, would have to be expressly addressed and allocated in a parenting order. The courts would then allocate decision-making authority on the basis of the best interests of the child (the specific criteria for which are discussed in the next section).
However, under this approach, the parent with physical care of the child would still need to be able to exercise authority over day-to-day decision-making without consulting the other parent. This approach would need to specify, in the allocation of decision-making authority, what if any authority was to be shared between the parents (such as that over issues such as major medical problems, education and religion), and the day-to-day authority that would necessarily be within the purview of the parent with physical care of the child.
This approach is the one most consistent with a neutral model that makes no presumptions in advance about the allocation of parenting responsibility. Thus, in a parenting responsibility model, parenting orders should be required to expressly address and allocate parenting responsibility, including the allocation of decision-making authority.
A model of parenting orders based on either allocated parental rights and responsibilities or residential schedule and decision-making-authority models, is most consistent with this neutral approach, in which there are no presumptions in advance of the allocation of parental responsibility. Rather, within both of these models, parenting orders would expressly address and allocate parenting responsibility, including the allocation of major decision-making authority.
Parental Responsibility in the Absence of a Parenting Order (or Agreement)
Another issue that would need to be addressed within such a model is the implications for parenting responsibility in general and decision-making authority in particular in the absence of a court order or private agreement. For example, what would happen when the parties take no action—that is, when they have not made a private agreement and do not seek a court order? Similarly, what would the legal status be during the interval period—that is, when a separating or divorcing couple is attempting to negotiate a private agreement but has not yet reached an agreement and there is no court order?
Under provincial legislation, custody or guardianship is generally shared equally by both parents, (particularly by those parents who have lived together and are now separating) unless a court order or agreement provides otherwise.251
The parenting responsibility model could work on a similar basis. Parenting responsibility would be jointly held by both parents, and would remain so until an order or agreement provides otherwise. If the parents separate, there could be similar provisions for parenting responsibility in general, or decision-making authority in particular, to follow the child’s residence (based on the consent, implied consent or acquiescence of the other parent). Parenting orders (or agreements, discussed below in the section on parenting plans) would then be required to expressly allocate the various aspects of parenting responsibility.
While this approach may appear to bear considerable resemblance to a shared parenting model—that is, parenting responsibility is shared until an order provides otherwise—there are some subtle, but significant differences. The Australian legislation provides that parental responsibility is shared unless otherwise ordered. This parental responsibility model could provide that parental responsibility is shared until otherwise ordered. The scheme could also require that a parenting order clearly set out the allocation of parenting responsibilities, including decision-making authority. Moreover, as noted, this approach is consistent with current practice under which parents do share custody until a court order, agreement (or implied consent) provides otherwise.
However, this question is complicated by the divided jurisdiction in this area. The Divorce Act only has jurisdiction over custody and access disputes respecting a child of the marriage upon or after the granting of a divorce. Prior to an application for divorce, custody and access disputes are governed by provincial legislation. If a divorce judgment is silent on the issue of custody and access, an order under provincial legislation remains valid. Further, if there is no order, either under provincial or federal law, then the default position would be whatever provincial law established. In other words, the default position under federal law (i.e. the situation in the absence of an agreement or order) is the provincial law.252
There are limits, then, to the extent that federal legislation alone could address the question of parental responsibility in the absence of a parenting order. It could not apply to separating couples who have not yet initiated divorce proceedings. Rather, parents who did not have an agreement or an order under provincial law would be governed by the default position of the provincial law.
The Divorce Act could, theoretically, have jurisdiction once a divorce action was initiated. But, it would be important that any attempt to establish a default position under the federal law not automatically invalidate the orders that separating parents may have received under provincial law. This would create profound confusion and chaos among all those couples who have chosen to settle their parenting arrangements under provincial law.253 The Divorce Act could establish a default position that would apply to separating couples who have no agreement, and no order under either provincial or federal law. It could establish a federal default.254
However, to say that the Divorce Act could have jurisdiction to establish such a default position is not to suggest that it should do so. It is not clear that there would be any advantages in displacing the provincial default. It would be important to know with whom parental responsibility was vested in the absence of a court order or agreement. However, it is not at all clear that this can or should be done in the federal legislation.
Moreover, the issue highlights the importance of federal-provincial-territorial cooperation and consensus in any reform to the law of custody and access. If the federal, provincial and territorial governments agree to reform their laws on the basis of the parental responsibility model, provincial and territorial laws could be amended to reflect the desired default position (of joint parental responsibility until an agreement or order provides otherwise). However, if the federal government decided to move to such a model but the provinces and territories did not, then the default position would continue to be framed in terms of custody and access under provincial law.
Before establishing parental responsibility in the absence of a court order or agreement in the Divorce Act there would need to be a careful examination of the interaction of federal-provincial-territorial legislation in an area of divided jurisdiction. It would require substantial consultation and collaboration between the federal, provincial and territorial governments. The federal Divorce Act cannot establish this default position alone.
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