An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
OPTION THREE: SHARED PARENTING (continued)
PARENTING ORDERS (continued)
Violence, High Conflict and Inadequate Parenting
As with the other options for reform, the general guiding principles and objectives of protecting children from violence, high conflict and inadequate parenting, require that the Divorce Act address the unique needs of children from these separating and divorcing families. Indeed, the importance of addressing the needs of children from violence, high conflict or inadequate parenting families is heightened in the context of a legal regime based on the idea of shared parenting. This option for reform presupposes that some degree of shared parenting is in the best interests of children, that both parents should continue to have some kind of parenting responsibility after divorce, and that the law should encourage continued relationships with both parents. This option places a premium on cooperation and continuity, emphasizing that parents should be encouraged to reach their own agreements about their children and that both parents should continue to have meaningful relationships with the children following separation and divorce. All of these assumptions are profoundly challenged by the existence of violence, high conflict and inadequate parenting.347 The existence of any of these three factors will make cooperation difficult if not impossible. Research also suggests that continued contact with both parents may not, in fact, be in the best interests of the child. It will, therefore, be very important to specifically identify the ways in which families that have experienced violence, high conflict and inadequate parenting ought to be treated within a regime that otherwise emphasizes cooperation and continuity.
The particular ways in which a reference to these factors could be incorporated into the statutory regime depends, in part, on the particular model for shared parenting. The approaches do share a general theme of limiting the application of shared parenting in the context of violence, high conflict and inadequate parenting and then providing some guidance for the determination of an alternative parenting arrangement.
Presumption of Shared Parenting Order
In a model that establishes a presumption in favour of a shared parenting order, the existence of family violence, high conflict and inadequate parenting should be specifically identified as a factor that would rebut the presumption.
These factors could then be taken into account in order to determine the alternative-parenting arrangements. The options would be similar to those discussed in Option Two—establishing a presumption against residence and contact, or giving the court discretion to restrict residence or contact. This approach could also set out the range of possible protective conditions for contact.
Shared Parenting with Parenting Orders
In a model based on the U.K.-Australian scheme, violence, high conflict and inadequate parenting could be identified as factors to be considered in making parenting awards.
As discussed in Option Two above, violence, high conflict and inadequate parenting could either be included as general factors in the best interests of the child, or they could be included as factors for specific parenting orders. Again, the options would be similar to those discussed in Option Two—establishing a presumption against residence and contact, or giving the court discretion to restrict residence or contact. The legislative framework could also address the limitations on decision-making authority, setting out either mandatory or discretionary limits on shared decision-making in the context of violence, high conflict and inadequate parenting. It could also set out the range of possible conditions for contact.
Optional Shared Parenting Order
In a model based on the Maine scheme, violence, high conflict and inadequate parenting could be identified as factors to be considered when choosing among the sole, shared or allocated parental rights and responsibility orders.
This approach could include a general limitation on shared parenting orders, stating, for example, that the court shall not make a shared parenting rights and responsibility order in cases involving family violence, high conflict or inadequate parenting. Or, the limitation could be put more narrowly, stating, for example, that the court shall only order shared parenting if it is in the best interests of the child, and adequate provision can be made for the safety of the child and the parent.
As with the other models of shared parenting, the statutory regime could further elaborate on the relevance of violence, high conflict and inadequate parenting. Again, it could establish a presumption against residence and contact, or give the court discretion to restrict residence or contact. It could address similar limitations on decision-making authority. This approach could also set out the range of possible protective conditions for contact.
The questions about the nature and role of parenting plans under a shared parenting model are very similar to the questions about parenting plans under the parenting responsibility model discussed in detail in Option Two. The model would have to address the same issues namely,
- (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 by which such plans would be reviewed by the courts,
- (4) the limitations or restrictions on parenting plans, and
- (5) variation or modification of parenting plans.
Most of these parenting plan issues do not differ in any significant way from the approaches discussed and recommended under Option Two. There is, however, one issue specific to a shared parenting responsibilities regime, namely, the extent to which it is or could be compatible with mandatory parenting plans.
Optional or Mandatory?
The regime recommended by the Special Joint Committee is one in which parenting plans would become the central instrument in the resolution of parenting disputes. It recommends that the Divorce Act be amended to require that all parties applying to a court for a parenting order be required to file a proposed parenting plan with the court.348 It also recommends that all parenting orders be made in the form of parenting plans.349
The recommendations of the Special Joint Committee, coupled with the adoption of the language of shared parenting, are unprecedented. The only two jurisdictions that have imposed mandatory parenting plans do not use the language of shared parenting,350 and the jurisdictions that use the language of shared parenting do not have mandatory parenting plans. Australia, for example, allows and encourages the use of parenting plans, but does not require them. Ironically, despite the U.K. Act’s presumption in favour of private ordering, the legislation does not specifically mention parenting plans.
Further, as mentioned above, the Special Joint Committee does not distinguish between parenting plans and parenting orders but, rather, says that all parenting orders should be made in the form of parenting plans. In this respect, the Committee appears to be following the Washington Parenting Act, in which all parenting orders are made in the form of parenting plans. But, as mentioned, the Parenting Act is not based on the language of shared parenting, and does not require that parents share any particular parenting functions.
In a mandatory regime of parenting plans, such as those established in Washington and Montana, it may be sensible for parenting orders to take the form of parenting plans. However, it is not clear that a mandatory parenting plan regime is entirely compatible with a shared parenting regime. One of the key objectives of a mandatory parenting-plan regime is to give parents considerable flexibility in tailoring their post-divorce parenting arrangements to suit their children’s needs. By contrast, one of the key objectives of a shared parenting regime is to insist that parents share their parental responsibility in a particular way. While a mandatory parenting plan regime allows parents to divide their decision-making authority however they see fit, a shared parenting regime tends to insist (or allow, in the Maine approach) that major decision-making authority be shared between the parents.
What then would be the role or meaning of shared parenting within a mandatory parenting plan regime? Would parenting plans start from an assumption that major decision-making would be shared (major medical, education and religious decisions), and then allocate other aspects of parenting responsibility? Would parents be allowed to deviate from shared decision-making authority? On what basis? And how would the courts allocate decision-making authority in the absence of parenting agreement? Would the courts simply return to the presumption of shared decision-making?
An approach to parenting plans that insisted that certain aspects of parenting responsibility be shared (i.e. major decision-making) would represent a significant departure from the idea that parents should be able to tailor their post-divorce parenting according to the unique needs of their children. Even if parents were allowed to depart from the assumption of shared decision-making authority, there would be little or no incentive for them to do so. If courts returned to shared decision-making authority in the absence of parental agreement, then there would be no incentive for a parent to agree to less than shared decision-making.
An optional approach to parenting plans within a shared parenting regime might generate similar results (parents not agreeing to anything less than shared decision-making authority). But, by definition, this approach would only apply to parents who could agree on their parenting arrangements in any case, and the tension between the approaches may be less conspicuous.
Parenting plans, within a shared parenting model, would lose some of the flexibility that they would have within the parenting responsibility model. Parents would start from the presumption that major decisions would be shared, and could then negotiate the other significant details of their parenting arrangements. The plans could set out the child’s residential schedule or residential time, the allocation of other non-major decision-making authority, as well as the proposed dispute-resolution process. As such, parenting plans could still perform an important role.
Another approach might be to adopt a mandatory parenting plan regime, in which parents are required to allocate their parental responsibility, and simply call it
"shared parenting." In this approach, there would be no requirement that any particular aspect of parenting responsibilities be shared. If parents did not agree, then the court would be required to allocate the various aspects of parental responsibility according to the relevant criteria. This approach would, in effect, be adopting that of the Washington Parenting Act, and calling it
"shared parenting." However, it would be an approach that more closely resembled a mandatory parenting plan regime within Option Two—that is, a neutral parental responsibility model. The only difference would be one of labelling. It is not clear that this would capture the spirit of shared parenting, and it would certainly not satisfy the constituency pushing for shared parenting.
The Special Joint Committee has recommended a parenting plan set out
"details about each parent’s responsibilities for residence, care, decision-making and financial security for the children, together with the dispute resolution process to be used by the parties."351 Again, the Committee seems to be following, in a very general way, the Washington Parenting Act, which requires that a parenting plan include the child’s residential schedule, decision-making authority and a dispute resolution process.
As discussed in Option Two above, while a mandatory parenting plan regime would need to set out the content requirements for those plans in some detail, an optional parenting plan regime would also benefit from providing at least some general guidance on the kinds of issues that a parenting plan could or should include.352 The content suggested by the Special Joint Committee appears to be appropriate.
Criteria for Review and Limitations on Private Ordering
The question of judicial deference to parenting plans and the appropriate criteria for approving a plan have been extensively discussed above. The standard of review of, and degree of deference to, these private agreements needs to articulated with the statutory framework. Further, as also discussed above, the legislation would need to set out carefully the limitations to private ordering and the specific circumstances in which a court would be required or have the discretion to set aside a parenting plan or a particular provision therein.353
As discussed in Option Two above, the Washington Parenting Act provides a good model for the limitations on private ordering and for specifying the circumstances in which a court could override the provisions of a parenting plan. The same criteria for review and restrictions would be appropriate under Option Three.
Variation and Modification
The issue of variation and modification of parenting plans has been extensively discussed in Option Two. The approach and standard for variation discussed under Option Two should also apply to Option Three.
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