An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
OPTION TWO: PARENTING RESPONSIBILITYAND PARENTING ORDERS (continued)
In this second option for reform, parenting plans would not simply be added to the custody and access regime but, rather, would be part of an overall scheme that replaced the language of custody and access.
As discussed above, any reform that attempts to incorporate parenting plans into the Divorce Act needs to consider a number of related issues:
- (1) whether parenting plans would be optional or mandatory,
- (2) the required content of parenting plans,
- (3) the degree of judicial deference to parenting plans, and the criteria against which such plans would be reviewed by the courts,
- (4) the limitations or restrictions on parenting plans, and
- (5) the variation or modification of parenting plans.
Optional or Mandatory?
As discussed in the section on Option One above, the Divorce Act could be amended to allow or encourage parties to enter into parenting plans. Or, the Divorce Act could be amended to require divorcing parents to file parenting plans before, or instead of, seeking a parenting order. A third alternative would be to give the courts the discretionary power to require that divorcing parents seeking a parenting order file a parenting plan.
The Australian legislation is an example of the first approach, which encourages parents to reach their own agreements about the future parenting of their children. The Washington regime is an example of the second approach, which requires that all separating parents file parenting plans. Several American states have pursued the third approach, giving the courts the authority to require a parenting plan.285
Both optional and mandatory approaches can be seen to fit within the spirit of a neutral parental responsibility model. Neither approach presupposes a particular allocation of parenting responsibility but, rather, both approaches allow the parties themselves to work out their own parenting arrangement. Both approaches are consistent with the general objectives of reform—encouraging parents to resolve their own parenting disputes with a process that is sufficiently flexible to address the unique needs of each family.
The early research in jurisdictions that have included parenting plans in their legislation does not clearly show whether the plans should be optional or mandatory. In the Australian regime, optional parenting plans are not being used, although this may be due to the highly complicated system of registration.286 In the Washington regime, mandatory parenting plans have not significantly altered the outcome of parenting disputes.287 However, the mandatory schemes have transformed the process for the resolution of parenting disputes. The process is one in which parents must file detailed parenting plans, and in which parents are thus forced to focus on the allocation of particular aspects of parenting responsibility.
A mandatory regime of parenting plans, modelled on the Washington Parenting Act, could advance many of the objectives of legislative reform within a neutral model of parenting responsibility. It could encourage parental cooperation in the resolution of parenting disputes and encourage the use of primary dispute resolution, while still retaining the authority of the court as a forum of last resort, and as a forum to ensure that the best interests of children are protected. A mandatory regime obviously provides a stronger incentive for parents to try to cooperate, but it does not force them to do so. Rather, parents who are unable to agree on a parenting plan may file their own parenting plans with the court, and seek a court order in the form of the parenting plan.
An optional parenting plan scheme could be integrated into the Divorce Act in the same manner as discussed in Option One. The Act could contain a provision encouraging parents to file parenting plans, and then set out the general framework for these plans: their suggested content, the criteria for review, the restrictions and the standard for modification.288 If parents did not agree, and did not file parenting plans, then they would be able to seek a parenting order. This approach is consistent with any of the three approaches to parenting orders discussed above, and would be a meaningful complement to a regime of parenting responsibility.
However, a mandatory approach to parenting plans represents a very different model for parenting responsibility. In this approach, parenting plans would become the primary vehicle for the resolution of parenting disputes. In the two U.S. jurisdictions that have adopted a mandatory parenting-plan approach, courts must issue their orders in the form of parenting plans. A mandatory approach to parenting plans, then, rather than simply complementing one of the three approaches to parenting orders discussed above, represents an alternative. A mandatory parenting scheme would need to be designed as its own approach to parenting responsibility.
In the discussion of parenting plans that follows, the paper attempts to highlight the extent to which the design of such a mandatory approach would differ from an optional approach as discussed in Option One.
The content requirements for parenting plans have tended to be related to whether the plans are optional or mandatory. As discussed above, optional schemes have fewer content requirements than mandatory schemes.289
The Washington Parenting Act, 1987, which requires all separating parents to file a parenting plan, requires that a plan set out the child’s residential schedule, the allocation of decision-making authority and a dispute-resolution mechanism.290 The Act then sets out, in some detail, the requirements for each of these aspects. 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."291 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 provisions for holidays, birthdays of family members, vacations, and other special occasions."292
If parenting plans were made mandatory, then it would be appropriate to set out the content requirements for them in some detail. The content requirements could be modelled on the Washington Parenting Act. It would also be helpful to include the detailed definition of parenting responsibilities (or what the Washington Act calls
"parenting functions"), in order to help turn parents’ attention to the specific kinds of responsibilities that need to be allocated.
As discussed in Option One above, even if parenting plans were made optional, 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 provide 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 and contact schedules), the allocation of decision-making authority (for issues such as major medical problems, education and religion), support obligations and a dispute-resolution mechanism. While these would not be mandatory, a statutory list may help direct parent’s attention to their children’s needs, and encourage cooperation in meeting these needs.
Judicial Deference: Criteria for Review
If the Divorce Act was amended to allow or require parenting plans, attention would need to be given to the degree of deference that the courts would be expected to give these private arrangements. 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 interests. A shift to a parenting responsibility model could continue to provide courts with this authority or, alternatively, could require greater deference towards the agreements that parents make about their children within a parenting plan. The standard of review of, and degree of deference to, these private agreements would need to be articulated; a shift to a model of parenting responsibility would not, in itself, resolve these issues.
As discussed in Option One, it would be important to balance some degree of deference to the consensual agreements of the parties with the court’s overriding interest in protecting the best interests of the child. If the standard of review is too low and courts routinely overturn consensual parenting plans, separating and divorcing parents will have little incentive to undertake the often difficult negotiations to reach an agreement on their own.293 At the same time, it is also important that all parenting arrangements continue to be governed by the general standard of the best interests of the child. The approach adopted in a number of American jurisdictions, which provides that the courts shall enforce a consensual 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.
The legislative framework could further specify the circumstances in which parenting plans, or provisions thereof, may be set aside by the court. The Washington Parenting Act sets out a range of mandatory and discretionary restrictions on parenting plans. These are addressed in further detail under
"Limitations" in the section below.
In a mandatory regime, attention must also be given to the appropriate criteria for review when the parents do not agree. When parents fail to reach a consensual parenting plan, the court must then make its order in the form of parenting plan. The Washington and Montana regimes both generally provide that a parenting plan must be determined according to the best interests of the child. As discussed above, the Washington regime sets out highly specific criteria by which the court is to approve and order each of the three aspects of a parenting plan: the child’s residential schedule, the allocation of decision-making authority and a dispute resolution process.294
If a mandatory parenting plan were adopted, the legislative framework would similarly have to set out the criteria by which a court could order a parenting plan, absent parental agreement. The policy considerations here are very similar to those discussed under the criteria for parenting orders above, in which the best approach would be one that provides the most specific guidance for the allocation of specific aspects of parenting responsibility. If a parenting plan had content requirements similar to those in the Washington Act—requiring a residential schedule, an allocation of decision-making authority, and a dispute resolution mechanism it would be extremely helpful if the scheme included specific criteria to guide the court when allocating each of these three factors. Again, the specific criteria set out in the Washington regime, which have been extensively reviewed above, provide an extremely useful model for doing so.
If the Divorce Act was amended to include a specific reference to parenting plans, as well as to require courts to exercise some degree of deference to these private agreements, it would be important to set out any limitations to this private ordering. As discussed above, it would be important to consider the relevance of violence, high conflict and inadequate parenting when reviewing and enforcing parenting plans. The existence of family violence, high conflict and inadequate parenting could be listed as factors to be taken into account in reviewing parenting plans, or these could be identified as specific limitations to a principle of otherwise deferring to the private arrangements of the parties. These limitations could be mandatory or discretionary.
The Washington Parenting Act sets out both mandatory and discretionary restrictions on parenting plans in considerable detail. For example, the Act provides that the parenting plan
"shall not require mutual decision-making or designation of a dispute resolution other than a court," and that
"a parent’s residential time with a child shall be limited if it is found that a parent has engaged in any of the following conduct" [Emphasis added]:
The Act also provides a list of factors that may have an adverse impact on the child’s best interests and that, if any exist, allow a court to preclude or limit any provision of the parenting plan, including neglect, long-term emotional impairment, substance abuse, the absence or substantial impairment of emotional ties between the parent and child, the abusive use of conflict, and the denial of access for a protracted period of time without good cause.296
It is precisely because the parenting plan is mandatory in all cases, and the content requirements of the plan set in such detail, that the Washington scheme has been very careful to delineate the particular circumstances in which parenting plans may deviate from the otherwise strict requirements, and the circumstances in which courts may set aside provisions of the plans. If a similar mandatory parenting plan scheme was adopted, it would be important to set out the circumstances limiting parenting plans and private ordering. In this respect, the Washington legislation provides an excellent model.
While an optional scheme would generally require less detail, there would still be considerable advantage to setting out a similar set of restrictions to parenting plans. While separating parents with any of these circumstances may be considerably less likely to file parenting plans in the first place, it would still be important to provide the court with the authority to override particular provisions of parenting plans in the event that these circumstances were found to exist.
Variation and Modification
As discussed above, an issue that needs to be addressed if parenting plans are to be expressly included in the Divorce Act is the standard of variation.
The rules for modification must balance the benefits of stability, with the need for flexibility and adaptability. As discussed in Option One, this balance is best achieved by allowing some modification of parenting plans. It would be consistent with current practice to allow a parenting plan to be modified when there has been a material change in circumstance. The standard of material change of circumstances is well established in law, and could easily be applied to a regime of mandatory or optional parenting plans.
Further, it would be consistent with the general objectives of encouraging parental cooperation, and flexibility of parenting arrangements, to allow a modification based on parental consent. Parents should generally be allowed to make the changes and modifications that they agree are in the best interests of their children. However, the court should retain its authority to review these requests, to ensure that the modification is knowing and voluntary, and that it is in the best interests of the children.
There are few negative aspects to incorporating parenting plans into a parental responsibility scheme on an optional basis. Optional parenting plans can encourage separating and divorcing parents to negotiate their own parenting arrangements, reflecting the particular needs of their children. Optional plans can be seen to reflect a number of the guiding principles of reform—encouraging parents to resolve their disputes through non-adversarial means, as well as accommodating the diversity of Canadian families and their children’s needs. The only real disadvantage of an optional regime is the risk that parenting plans will be ignored. The Australian experience, in which the use of parenting plans has declined since the reforms, suggests that it would be important to guard against setting up an overly burdensome regime that could operate as a disincentive. In particular, the Australian experience suggests that the cumbersome process of the registration of parenting plans has been a disincentive and should not be required. As discussed in Option One, if the Divorce Act was reformed to incorporate parenting plans on an optional basis, it should specify the suggested content of the plan and the standard of review, including the specific restrictions on parenting plans.
A mandatory approach to parenting plans represents a very different approach to the resolution of parenting disputes. If all parenting orders were to be made in the form of parenting plans, the Divorce Act would have to include the kind of detail currently found in the Washington Parenting Act, and the American Law Institute proposals. Such a regime would require a more detailed regime, with stricter content requirements, more attention to the criteria for review and a detailed description of restrictions to parenting plans.
There are many advantages to a mandatory approach to parenting plans. The approach could encourage parental cooperation, help focus parents’ attention on the allocation of parental responsibility, while at the same time providing parents with considerable flexibility to design a parenting arrangement according to the unique needs of their children. While strongly encouraging parents to reach their own agreements through non-adversarial means, the approach maintains courts as a forum of last resort for those separating and divorcing couples who are unable to agree on their parenting arrangements. It is, moreover, an approach that can protect children from the harm of violence, high conflict and inadequate parenting, providing that the statutory framework sets out these restrictions in sufficient detail. It is an approach that promotes the spirit of a neutral parenting responsibility model. It is not based on an ideal model of post separation parenting but, rather, allows and encourages parents to negotiate an individualized arrangement.
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