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

2001-FCY-2E

OPTION THREE: SHARED PARENTING (continued)

DISPUTE-RESOLUTION SERVICES

A statutory regime designed on the basis of shared parenting could also include a range of references to dispute-resolution and other services. The policy choices and challenges of doing so are the same as those reviewed in Option One, and echoed in Option Two. In a shared parenting regime, there might be expected to be an even greater emphasis on the cooperative resolution of parenting disputes; however, the options for reform are the same as those discussed above. Both parenting education and mediation and primary dispute-resolution services could be integrated into the Divorce Act in a manner that encouraged parents to consider these options and gave the courts the discretion to require parents to attend parenting-education programs, information sessions about the advantages of primary dispute resolution or both when such programs were available.

ADVANTAGES AND DISADVANTAGES OF THIS OPTION FOR REFORM

The objectives of legislative reform includes an effort to reduce parental conflict and litigation, encourage parental cooperation and promote meaningful relationships between children and their parents following separation and divorce, while protecting children from high conflict, violence and inadequate parenting. In this section, the paper evaluates the extent to which a regime of shared parenting might reasonably be expected to advance these objectives.

Less-Fraught Language?

A central argument in favour of the language of shared parenting is that it will help reduce parental conflict, by moving away from the emotionally fraught, winner-takes-all language of custody and access. As discussed above, the language of custody and access is said to have become too emotionally loaded, and to actually promote conflict and disputes between parents.

In this view, the language of shared parenting, by contrast, would help reduce parental conflict and promote a cooperative approach to the resolution of parenting disputes. The Special Joint Committee, for example, was of the view that "a shift to new, less loaded terminology is critical to reducing conflict in divorce." And, in its view, "shared parenting" is just such "less loaded" terminology.

Many of the limitations of terminological reform have been discussed above. There are reasons to question whether a mere change in language would be able to eliminate the conflict that underlies many parenting disputes.354 However, the language of custody and access may be one obstacle in the process of resolving parenting disputes, and it is worth exploring whether alternative language can be identified that is conducive to a less fractious resolution of parenting disputes. The issue to be addressed then is whether the terminology of shared parenting is such language.

The argument in favour of the language of shared parenting is that it is less emotionally fraught or loaded than the current language of custody and access and, therefore, more amenable to a cooperative resolution of parenting disputes. The problem with this argument is that the Special Joint Committee may have underestimated just how loaded this new terminology has already become.

First, the connotations of the term shared parenting make it very difficult to distinguish it from the language of joint custody. As discussed above, shared parenting is very closely tied to the idea of joint legal custody—that is, a presumption in favour of shared decision-making authority. Even if it is possible to differentiate shared parenting from such a presumption for legal purposes, it may be difficult to overcome the public perception, which closely associates these two terms. As well, the language of joint custody is extremely fraught and controversial.

Second, the language of shared parenting is language very closely associated with a particular stakeholder in the public policy debates, namely, fathers’ rights groups. It will be very difficult to disassociate the language of shared parenting from the political agenda of this stakeholder. If the objective of reform is to find new, less emotionally fraught terminology within which separating parents can resolve disputes regarding their children, the language of shared parenting does not appear to be up to the task.

Third, the language of shared parenting may not be as child-centred as the language of parental responsibility. Although subtle, there continues to be a parental rights connotation to this language, in which parents are entitled to a share of the child. It is language that is reminiscent of the property connotations of the language of custody and access.

As the Government of Canada’s response to the Special Joint Committee observes, "[t]he challenge is to identify a term that would meet those requirements yet avoid the problems currently associated with the terms custody and access as well as possible diverse connotations and understandings of the word ‘shared’. The term would need to be consistent with a child-centred approach and would have to be carefully defined to have a clear and accepted understanding and use by both the courts and public."355 The response further states that, "It may be that new child-centred words will need to be identified to describe a variety of particular parenting responsibilities and arrangements for use in parenting plans and court orders."356

It may be that the spirit of shared parenting—the idea that both parents continue to be parents after separation and divorce, and continue to have parental responsibility—can be captured without using the language of shared parenting itself. For example, both the U.K. and Australian schemes fall short of establishing a regime explicitly based on a presumption in favour of shared parenting. Both use the language of parental responsibility. The U.K. scheme states that this parental responsibility is joint, while the Australian scheme states that parents share this parental responsibility. Both regimes embrace the idea that parents continue to be parents after separation and divorce, and continue to have parental responsibility. It may be possible to advance this idea without relying on the qualifying terms shared or joint. Indeed, a neutral model of parenting responsibility can affirm this principle without using the language of "sharing" and without in any way presupposing that particular aspects of parenting should be allocated in particular ways. It might capture some of the spirit, without all of the terminological risks.

Shared Parenting as Norm: Promoting Meaningful Relationships or Inflexible Legislation Presumption?

Another argument in favour of shared parenting is that it is said to capture the idea that parenting survives separation and divorce and that both parents continue to have important responsibilities in their children’s lives. Shared parenting is intended to affirm the parenting status of both parents after separation and divorce, to recognize that both parents are and continue to be "real" parents. Shared parenting, then, is preferred because of its normative content—that is, because of the norm for post-divorce parenting that it establishes. It is intended to influence how parents restructure their parenting relationships after separation and divorce, in a way that promotes meaningful relationships with both parents.

The norm of shared parenting is, then, intended to be part of the educational or standard-setting function of legislative reform. It is hoped that the exhortative language, as contained, for example, in the Australian legislation, which states that parents should cooperate, share and agree on their parenting, will influence and guide the actions of separating and divorcing parents.357 As the Australian Family Court has stated:

…the aims of the Reform Act are long term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in the approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach taken by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.358

The language of shared parenting is intended to encourage parents to remain involved in their children’s lives, and to adopt cooperative attitudes and behaviours that allow them to accomplish this long term goal.

Shared parenting is a valuable norm for many separating and divorcing parents. As with joint custody, it is an idea that works well for many families. The more difficult issue is whether shared parenting is a valuable norm for all or most separating and divorcing parents, and whether it should, therefore, be incorporated as a general statutory norm for post-separation parenting.

Accommodating a Diversity of Family Forms or Legislative Presumption?

Both the Special Joint Committee and the government’s response concluded that no one model of post-separation parenting will be ideal for all children. Both, therefore, reject the use of legislative presumptions. A condition precedent, then, for any approach to reform is that it not establish a legislative presumption, and that it be capable of accommodating the diversity of separating and divorcing families.

It is not at all clear that a model of shared parenting can meet this criteria. As discussed above, it is very difficult to distinguish shared parenting from joint legal custody—that is, it is a model that presupposes that decision-making authority be shared between parents. As such, it is difficult not to conclude that a model of shared parenting would be a model based on a legislative presumption. The model assumes that a particular form of parenting, in which decision-making is shared between parents, is going to be in children’s best interests.

As discussed above, it is possible to identify at least three approaches to incorporating the language of shared parenting into law: a presumption in favour of shared parenting, a default position of shared parenting, and optional shared parenting.

An approach based on a presumption in favour of shared parenting clearly violates the injunction on presumptions, and assumes that a particular model of parenting (in which decision-making is shared) is generally in a child’s best interests.

An approach based on a default position of shared parenting may have somewhat more flexibility in parenting arrangements. As discussed above, under such a regime parenting responsibility begins as shared and continues to be shared unless a court order or private agreement provides otherwise. It does, however, at least provide the possibility that a court order or private agreement could provide otherwise, in the form of a special purpose or special issues order. This approach perhaps falls short of establishing a legal presumption in favour of joint legal custody or shared legal decision-making. It could be framed as a principle, rather than as a legal presumption. But, the effect of such a principle would be to establish one particular form of parenting in which decision-making is shared as the model for post-divorce parenting, and to assume that this parenting arrangement is ordinarily in a child’s best interests. While the assumption could be qualified within a statutory regime that set out the specific kinds of circumstances in which shared decision-making would not be appropriate, it would still be setting up a general model for post-divorce parenting.

An approach based on optional shared parenting, in which shared parenting is one among a range of possible arrangements, is most consistent with the injunction against presumptions and the need for flexibility to accommodate the diversity of separating and divorcing families. However, it is the approach that most closely approximates the existing law, in which joint custody is simply one among a number of possible court orders available. In this approach, then, shared parenting is not established as a norm, but one of a range of possible parenting arrangements.

Valuable Norm for the Promotion of Meaningful Parent-Child Relationships?

Even if it could be established that a norm of shared parenting did not violate the injunction on legislative presumptions, the issue that would need to be addressed is whether shared parenting is in fact a valuable norm for the diverse range of separating and divorcing families.

As mentioned above, shared parenting, like joint custody, may be a very helpful norm for some separating parents, but it is far from clear that it is helpful for all. Separating and divorcing families come in many varieties, and have been subject to many different typographies, by their degree of conflict, for example. The Australian Family Law Council describes three different kinds of separating parents:

  • (1) parents who are able to make arrangements for the ongoing care of their children,
  • (2) parents who need assistance through mediation, conciliation and other support services, and
  • (3) parents who are unable to cooperate to the extent that they can agree on arrangements for the ongoing care of their children.359

Shared parenting is an idea that is most likely to work well for parents in the first category—parents with an ability to communicate, cooperate and agree on the arrangements for their children.

By way of contrast, shared parenting is an idea that will not work for parents in the third category—parents who have little or no demonstrated ability to communicate and cooperate in relation to their children. Research clearly demonstrates that shared parenting does not work for high conflict families. This category would also include families that have experienced violence or inadequate parenting. Indeed, shared parenting is an extremely inappropriate legal norm for these families. While any statutory regime needs to carefully address the unique needs of these families, a regime based on the norm of shared parenting may present particular obstacles in accommodating these families. It may inadvertently lead to the problems of these families being underestimated, downplayed or obscured. These families may find themselves, from the beginning, encouraged into cooperative processes and arrangements. If they are not able to satisfactorily prove that they are high conflict, they will fall into a system that insists on the very thing that these families are unable to do—share and cooperate.

It is unclear whether shared parenting is a useful norm for parents in the second category, by far the largest category of separating and divorcing parents. These families may experience a medium degree of conflict, but those conflicts may not be intractable. Rather, these are families whose disputes can be resolved through various types of intervention. A regime that encourages the use of primary dispute-resolution techniques and early intervention may be very effective in helping these parents reach agreements regarding their disputes without resorting to litigation. In this respect, it might be possible to achieve the objective of encouraging parents to reach their own cooperative parental agreements. This begs the question, however, of whether these families would be assisted by a norm of shared parenting. Rather, a general approach to dispute resolution that encourages early intervention and the development of cooperative dispute-resolution skills could be promoted within Options One and Two.

The idea that parents continue to be parents and have parental responsibility to their children after separation and divorce may help these families reach workable parenting arrangements, avoid becoming enmeshed in a conflict about who gets to be the "real" parent, and it may help parents focus on allocating the various aspects of parental responsibility between them, focussing on their children’s needs, rather than their own "right" to be a parent. It is a useful norm that may help promote meaningful parent-child relationships for these families after separation and divorce. The question, however, is whether this norm is best expressed in the language of shared parenting. The problem lies in the confusion that continues to plague the term. For some, shared parenting may capture this idea of continuing parental responsibility. For others, shared parenting means mandatory joint legal custody. For yet others, it means mandatory joint physical custody. The problem comes back, then, to one of terminology: the language of shared parenting is both confusing and loaded.

Once again, it may be that the norm of promoting meaningful parent-child relationships after separation and divorce can be better captured by other language. For example, both the U.K. and Australian legislation aim to promote cooperative parenting and meaningful parent-child relationships after divorce. The U.K. regime speaks of parental responsibility and provides that this parental responsibility is held jointly and independently. The Australian regime includes a statement that both parents have parenting responsibility and that this responsibility is unchanged by virtue of any change in the status of the parents’ relationship. It also includes a statement that "parents share duties and responsibilities concerning the care, welfare and development of the child."360

Similarly, the Washington Parenting Act, although more accurately located within a neutral parenting responsibility model, includes a preamble that begins with the statement: "Parents have the responsibility to make decisions and perform other parental functions necessary for the care and growth of their minor children." It further emphasizes the importance of fostering the parent-child relationship, unless it is inconsistent with the child’s best interests.

It would be possible to adopt similar policy statements that emphasize the idea of parental responsibility without labelling the overall regime as one of shared parenting nor establishing a presumption in favour of shared parenting. The underlying norm of affirming the parental status of both parents after separation and of encouraging parent-child relationships could be promoted within a legal regime that does not specifically use the language of shared parenting.361

Finally, it is important to consider the limitations of law reform. Promoting norms of cooperation and ongoing parental involvement in the law does not guarantee that parents will, in fact, change their attitudes and behaviour accordingly. The research to date has not demonstrated that a norm of shared parenting is likely to influence the way in which parental responsibility is allocated between parents. Rather, research into the impact of both the U.K. and Australian legislation suggests that the allocation of parental responsibility remains largely unchanged from its pre-reform allocation. Nor has the research yet revealed a significant reduction in parental conflict. A legal regime can encourage separating parents to cooperate, but it cannot ultimately coerce them to do so.

The spirit of shared parenting—of encouraging cooperative parenting and ongoing parental involvement in the lives of children—may be a positive norm worth promoting for many separating and divorcing families. But, any attempt to do so must recognize the limitations of law, and provide a means of addressing the not insignificant number of cases in which cooperation and ongoing involvement are nothing more than elusive ideals.


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