An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access

2001-FCY-2E

OPTION THREE: SHARED PARENTING (continued)

SHARED PARENTING RESPONSIBILITY (continued)

PARENTING ORDERS

The Special Joint Committee has recommended a regime of shared parenting and mandatory parenting plans. It has not specifically addressed the question of parenting orders, other than to say that all parenting orders should be made in the form of parenting plans. The recommended regime is one in which parents are encouraged to reach their own agreement through parenting plans. If they are unable to agree, then they should be able "to make an application under the Divorce Act for a shared parenting determination. Judges making such determinations will be able to give consideration to proposed parenting plans filed with the court by each parent, and guided by the best interests of the child test, make a court order in the form of a parenting plan. Such a plan, although judicially imposed, will retain the benefits of being focused on the child’s needs and interests, as well as the advantages of flexibility and adaptability." The Committee further recommended that any such "shared parenting determinations" be made on the basis of a revised list of criteria in determining the best interests of the child.337

The approach of the Special Joint Committee does not distinguish between parenting plans and parenting orders. Rather, it appears to be following the approach of the Washington Parenting Act, in which all parenting orders take the form of parenting plans. However, the Parenting Act does not endorse a shared parenting approach. It does not use the language of shared parenting and does not, in fact, require that any particular dimensions of parenting be shared. The Special Joint Committee appears to be confusing and conflating different legislative approaches. It wants to endorse a shared parenting approach (as per Australia and the U.K.), and a mandatory parenting plan approach (as per Washington). It fails, however, to address the details of precisely how such a regime would be designed, and the problems and tensions associated with attempting to merge these two very different approaches.

It would be possible to design a regime based on the Washington Parenting Act, in which parenting plans are the primary instrument for resolving parenting disputes. It is not, however, an approach that mandates shared parenting, but allows separating parents to decide for themselves how best to allocate the various aspects of their parenting responsibility. Nor does it contemplate the making of "shared parenting determinations." Any attempt that requires decision-making to be shared in a parenting plan would be a very significant departure from a regime that emphasizes the importance of private choices and flexibility to adapt to the unique circumstances of individual families.

Conversely, it would also be possible to design a regime based on the U.K. and Australian approaches to shared parenting, which provide that parenting responsibility is shared, unless a parenting plan or parenting order provides otherwise. But, neither the U.K. nor Australia require that separating parents file parenting plans, nor do the regimes require that parents who do file parenting plans necessarily share parenting responsibility or decision-making authority.

The recommendations of the Special Joint Committee for mandatory parenting plans, shared parenting responsibility and parenting orders as parenting plans are not workable as a legal model. Rather, a much more detailed analysis of, and relationship among shared parenting responsibility, shared parenting orders and the potential role of parenting plans is required. It may be possible to capture the spirit of the Committee’s recommendations—of a regime that includes the language of shared parenting, and that encourages separating and divorcing parents to cooperate and reach their own agreements in parenting plans but such a legal regime needs to be more carefully and precisely designed. In the sections that follow, the paper attempts to identify the options for designing such a model.

The questions about the nature and role of parenting orders under a shared parenting model are very similar to those about parenting orders raised under the parenting responsibility model discussed in detail in Option Two. The model would also have to address the questions of the different types of parenting orders that such a scheme might adopt, the relationship between parenting orders and shared parenting responsibility, and the criteria for making and modifying parenting orders, including specific consideration of the relevance of violence, high conflict and inadequate parenting in such orders.

Types of Orders

Other jurisdictions that have experimented with shared parenting provide three models for types of orders.

Presumption in Favour of a Shared Parenting Order

The Florida statute allows the courts to make shared parental responsibility orders and sole parental responsibility orders. Under this statute, the court can consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare, or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family. However, it provides that the "court shall order that parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child."

Again, it is to be noted that shared parenting applies to decision-making authority not residence. A child’s residence continues to be decided according to the best interests of the child,338 and the statute continues to include the language of custodial and non-custodial parents, specifically when dealing with the allocation of the child’s residential time. A custodial parent is the parent with whom the child maintains his or her primary residence.

Range of Specific Parenting Orders

In Australia and the U.K., which have adopted the language of shared or joint parenting responsibility, parenting orders are broken down into specific kinds of orders. The Australian legislation provides for residence, contact and special-purpose orders. The U.K. legislation provides for residence, contact, prohibited steps and specific-issues orders. Both of these statutory regimes have been discussed in detail in Option Two above.

No Shared Parenting Responsibility; Shared-Parenting Order One Possibility

The Maine Domestic Relations Act provides that the court may make an order awarding parental responsibilities on the basis of allocated parental rights and responsibilities, shared parental rights and responsibilities, or sole parental rights and responsibilities. In this hybrid legislative scheme a shared-parenting order is simply one among a number of orders that a court may award. In terms of an award for shared parental rights and responsibilities, the statute provides that it "may include either an allocation of the child’s primary residential care to one parent and rights of parent-child contact to the other parent, or a sharing of the child’s primary residential care by both parents." A shared parenting order within this scheme, thus, does not require shared residence, although it does allow for it.

Models Compared

The strongest presumption in favour of shared parenting orders is found in the Florida legislation. In contrast, neither the Australian nor the U.K. schemes include a presumption in favour of shared parenting orders. Indeed, neither scheme contemplates shared parenting orders per se. Rather, both schemes begin from a presumption that parenting responsibility is shared or joint. Both schemes allow, and encourage, the parents to reach agreements in which they share parenting responsibilities. But, both schemes provide that parenting orders can expressly limit this shared parenting under a prohibited steps or special-purpose order (U.K.) and a special-purpose order (Australia).

Unlike the Australian law, the U.K. Act also includes, as discussed above, a "no-order presumption."339 As a result, the U.K. regime has a strong preference in favour of private ordering, whereas the Australian legislation retains a greater role for the courts in resolving parenting disputes, notwithstanding the legislative encouragement of shared parenting. The stronger preference for private ordering, alongside the joint allocation of parenting responsibility, might be seen to create a slightly stronger presumption in favour of joint or shared parenting. If joint parenting is effectively the default position under the legislation (that is, the legal position unless courts order otherwise), and the courts are told to make no order unless it is in the best interests of the child, then the scheme may be one in which it is more likely that parenting will remain shared. But, under the scheme, parents are free to make other kinds of parenting arrangements, and, when the courts do in fact act, they too are authorized to make orders that limit or alter joint parenting.

Once again, the Maine legislation is a model that incorporates a reference to shared parenting orders in a manner that does not presume any particular type of parenting arrangement. However, the scheme does allow the court to make a shared parenting order. The legislation provides a presumption in favour of enforcing shared parenting arrangements agreed to by the parents. There is no presumption—in favour or against—of shared parenting in the absence of such parental agreement. Rather, the court must then decide which order is appropriate, based on the best interests of the child. It is the model that, despite the difference in language, most closely resembles the existing Divorce Act, which allows the court to make sole and joint custody orders, to be determined according to the best interests of the child.

Finally, each of the regimes require, in their own unique way, that a separate decision be made regarding the child’s residence. A shared parenting order under the Florida and Maine models does not require that residence be shared but, rather, requires a determination of the child’s residence, and allows residence to be allocated to one or both parents. Similarly, the U.K. and Australian schemes require that a child’s residence and contact with the non-residential parent be determined in parenting orders, independent of the assumption of joint or shared parenting responsibility.

Relationship Between Parenting Order and Parenting Responsibility

The three models differ in the relationship between parenting orders and parenting responsibility, and in the degree of clarity with which this relationship is set out.

Presumption of Shared Parenting Order

In the Florida scheme, shared parenting is a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to the child. It is the result of a court order, and does not appear to exist independent of it.340

Shared Parenting Responsibility, with Range of Specific Parenting Orders

Under the U.K. and Australian legislation, parental responsibility begins as joint or shared. The Australian Act provides that each parent has parental responsibility, that this responsibility continues despite any change in the relationship between the parents, and that this responsibility is not affected by a residence, contact or other order, except to the extent, if any, as is expressly provided in the order, or necessary to give effect to the order. Thus, under this regime, parenting responsibility continues to be shared unless a court order or private agreement provides otherwise.

The relationship between parental responsibility and parenting orders under the U.K. Children Act is similar, although it does not set out this relationship in the same statutory detail. A person with parental responsibility can act unilaterally in meeting that responsibility, provided that he or she doesn’t violate any court order.341 A parent with a residence or contact order in his or her favour would be authorized to make independent decisions regarding the child, unless a prohibited steps or specific-issues order otherwise limited this authority.

No Shared Parenting Responsibility; Shared Parenting Order One Possibility

Under the Maine legislation, parental responsibility is not assumed to be shared but, rather, is specifically allocated within one of the three available orders. In this scheme, shared parental responsibility is a specific allocation of parental responsibility in which decision-making authority is shared, and in which physical residence could, but need not, be shared. However, parental responsibility could also be granted to one parent in a sole parental responsibility order, or otherwise allocated between the parents as an allocated-parental-responsibility order. The default position under the Act—the situation before any court orders—does appear to be one of joint parental responsibility.342

The relationship between parenting responsibility and parenting orders should be made very clear within the legislation.

Criteria for Parenting Orders

Once again, the general criteria for making a parenting order must be the best interests of the child. As discussed in Option Two above, the issue that arises, then, is the extent to which this best interests of the child test should be further articulated. Many of the policy questions and choices directly parallel those in Option Two. The specific question that needs to be answered is whether the criteria for making parenting orders under a shared parenting model need to differ in any significant way from the criteria discussed in Option Two.

General vs. Specific Criteria

As per Option Two, the criteria for making parenting orders could be set out as a general list of statutory factors to take into account in determining the best interests of the child (as per the U.K. and Australian models). Or, the statute could set out the specific factors that would need to be taken into account in relation to specific kinds of parenting orders and the allocation of specific dimensions of parenting responsibility (as per Washington state law). The way in which specific criteria would be set out would depend, in part, on the particular approach to parenting orders adopted.

Presumption in Favour of a Shared Parenting Order

This model, which defines shared parenting as being in the best interests of the child, may seem the least likely candidate for specific criteria. The presumption is that decision-making authority will be shared by the parents. In the Florida statute, however, there is no similar presumption regarding the child’s residence. This model could, then, still benefit from the identification of specific criteria in relation to the child’s residence. Further, despite the presumption, the Florida statute allows the court to allocate specific aspects of decision-making. It would be possible, then, to include a reference to specific factors that the court should take into account when allocating decision-making authority.

Shared Parenting Responsibility with A Range of Specific Parenting Orders

As noted, the U.K. and Australian schemes do not identify specific criteria for specific dimensions of parenting responsibility but, rather, rely on a general list of factors to be taken into account when determining the best interests of the child. However, it would be possible within this model to identify specific factors that the courts would need to take into account when making specific kinds of parenting orders. For example, if the U.K. and Australian approach to parenting orders was adopted, it would be possible, as discussed above in Option Two, to identify specific criteria for the courts to take into account in making residence and contact orders, and specific issues, prohibited steps and special purpose orders.343

The advantages of identifying specific criteria within a shared parenting model would be the same as those discussed in Option Two.

Shared Parenting Order as a Possible Order

If a shared parenting order was one among a number of possible orders that a court could award, the legislative scheme could identify the specific contexts in which such an order would be appropriate. The Maine legislation provides that a court should make an award of shared parental rights when the parties have agreed to it, unless there is substantial evidence that it should not be ordered. However, it does not provide any specific guidance on if and when such shared parenting orders should be made against the wishes of the parents. Rather, the legislation simply directs the court to make an award of sole parenting, allocated parenting or shared parenting based on the best interests of the child.

This model would again raise the question of whether it would be appropriate to order shared parenting against the wishes of the parties. As mentioned above, the courts have been reluctant to order joint custody against the wishes of the parents. Experts agree that joint custody works best when it is voluntary, since it requires a high degree of cooperation and communication.344 A statutory regime that allows a court to make a shared parenting order might, then, want to identify the particular circumstances in which such shared parenting is, or is not, appropriate. It could specifically identify the factors that the court should take into account in ordering shared decision-making authority.

A regime based on a shared parenting order as one among a number of possible orders could also identify the factors to be taken into account in allocating the child’s residence.

As discussed above, the advantage of criteria for ordering the specific dimensions of shared parenting is that it directs the courts’ attention to the particular factors that might facilitate, or undermine, shared decision-making and shared residence. Again, the more specific the criteria, the more guidance the courts and the parties will be given when resolving parenting disputes.

Specific Criteria for Specific Aspects of Parenting Responsibility

All three models could then be designed to include specific criteria for the allocation of particular dimensions of parenting responsibility. In so doing, a shared parenting regime could borrow from the factors identified in the Washington Parenting Act.

Decision-Making Authority

As discussed above, the Washington scheme provides that the court shall order sole decision-making authority to one parent when it finds that both parents are opposed to mutual decision-making, or one parent is opposed to mutual decision-making and the opposition is reasonable. The Act further provides that in allocating decision-making authority, the court shall consider the history of participation of each parent in decision-making, whether the parents have a demonstrated ability and desire to cooperate with one another in decision-making, and the parents’ proximity to each other, to the extent that it affects their ability to make timely mutual decisions.

Identifying this criteria would be most important in the context of the Maine model, in which a shared decision-making order was simply one of three orders that a court could make. By way of contrast, both the Florida and U.K.-Australian models assume shared decision-making. Specific criteria could be identified that would rebut the presumption of shared decision-making, and that would operate, then, as limitations on this assumption of shared decision-making. These limitations are discussed further below in the section on violence, high conflict and inadequate parenting.

Residence

All three approaches to shared parenting require a separate determination of the child’s residential time (residence and contact or residential schedule). It would, therefore, be important for the statutory framework to set out carefully the factors to be taken into account in allocating this aspect of parental responsibility. A shared parenting regime could similarly borrow from the specific factors identified in the Washington scheme in relation to the allocation of the child’s residence.345 As discussed above, stability and continuity of care should at least be one of the relevant factors in this allocation.346


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