Child Custody Arrangements: Their Characteristics and Outcomes

2004-FCY-3E

APPENDIX A:
Policy and Legislative Approaches
to Shared Custody in Other Countries

United States

Each state has its own separation and divorce laws and there are considerable differences by state and region in the extent to which custodial arrangements are shared.  Almost 90 percent of states authorize joint legal custody, 12 states have a presumption in favour of joint legal custody, and another 8 states have a presumption in favour of joint custody when both parents agree (American Bar Association, 2001).  Joint legal custody involves joint decision-making rights and responsibilities with regard to child rearing.  A handful of states encourage or have a presumption for joint physical custody (e.g. New Jersey, Oklahoma, Oregon, Vermont and Washington).

Many state laws specify that custody decisions should ensure that the child has frequent and continuing contact with both parents (e.g. Arkansas, Colorado, Delaware and Florida).  The proviso of "best interests of the child" is very common.  Other statutory exceptions are when physical harm or significant emotional harm to the children or a parent is likely to result from contact with a parent.

England and Wales

The Children Act 1989 promotes parental responsibility, defined as "all rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to that child or his property" (United Kingdom Department of Health 1997).  When a couple is not married, only the mother automatically acquires parental responsibility. Unmarried fathers must secure parental responsibility by agreement with the mother or by order of the court.

The Act contains a "no order principle."  It is deemed to be in the best interests of the child that the courts not become involved in the post-divorce or separation arrangements when the parents can agree on those arrangements.  The court only makes an order when it is satisfied that making one is better for the child than not making an order.  When the parents cannot resolve the matter by agreement, either party can apply to the court for an order.  There are four types of order:

Residence order. 
Residence replaces the term custody.  When the parents cannot agree on the place of residence of the children, the court can make this order.  If the parties agree, then a joint residence order could be made specifying how much time the children spend with each parent.
Contact order. 
Contact replaces the term access. When the parents cannot agree on contact (telephone, letter, in person), the court may order a contact order that requires that the person with whom the children are living make the children available for contact. Contact is the right of the children not of the parents.
Prohibitive steps order. 
When one parent objects to something the other is doing in his or her role as a parent, they can apply for a prohibitive steps order. This order prevents the parent from taking specified actions, such as removing the children from the jurisdiction.
Specific issue order. 
When the parents are unable to agree on specific aspects of the upbringing of the children (e.g. which school the children are to attend) they can apply for a specific issue order.

It is believed that joint residence orders (shared custody) are rare. For example, the divorce.co.uk Web site states that joint residence orders are "unusual because [they are] seldom practical." The original intent of the legislation was apparently to encourage the use of these orders more frequently than has actually occurred. The House of Commons reference sheet on the Children Bill, dated June 26, 1989, stated the following:

It is intended that another difference between residence and custody orders is that the new order should be flexible enough to accommodate a much wider range of situations₀ In some cases, the order will provide that the child shall live with both parents, although they do not share the same household. If such an arrangement is practicable, there is no reason to discourage it.[28]

Scotland

The Children (Scotland) Act of 1995 replaced custody and access arrangements with residence and contact orders, as in England and Wales. Previously, it was possible for divorcing couples to apply for joint custody but it was relatively unusual, and many courts were reluctant to consider this possibility. Parents wishing to share parenting can now apply for a joint residence order or, alternatively, may apply for a contact order involving overnight stays for specific periods. There is the presumption under this Act, as in the legislation in England and Wales, that the parents should make their own arrangements rather than seek court orders.

Australia

Shared parental responsibility is a hallmark of the Family Law Reform Act proclaimed in 1996. Although parents are encouraged to make child custody arrangements outside of the court, parenting orders made by the court can include arrangements for residence, contact, maintenance and other issues. Some of the new terms and concepts were drawn from the British Children Act 1989.[29]

An important feature of the legislation was the removal of the terms and concepts associated with the right to guardianship, custody or access and the introduction of the new concepts of parental duties and responsibilities. The concept of guardianship was removed and both parents have responsibility for their children, unless there is a court order otherwise.

Parents are encouraged to agree on arrangements regarding the care and responsibility of children rather than seeking a court order. The arrangements must consider the best interests of the child as the most important factor. Parenting plans are agreements between parents covering arrangements on the following:

  • who the child will live with (residence orders);
  • who the child will have contact with (contact orders);
  • maintenance arrangements (maintenance orders); and
  • any other aspect of responsibility (special issues orders).

Parenting plans can be registered in the Family Court and enforced like an order. When this occurs, there must be a statement that each person had independent legal advice and that a family and child counsellor was consulted. Each professional must sign the plan. There is no requirement that parents obtain independent advice or counselling, nor that agreements be registered. When there is a disagreement, the Family Court judge can only set a parenting plan aside when he or she is convinced that it was obtained by fraud, that both parents want it set aside or that it is in the best interests of the child to do so.

A residence order is similar to what was previously called a custody order and deals with where the children are to live. Unlike a custody order, a residence order concerns only residence and does not grant complete control over decisions on daily care, which is the responsibility of both parents. A contact order is similar to what was previously called an access order and sets out with whom the children are to have contact. When there is family violence, the safety of the vulnerable parent is to be taken into account when contact orders are made.

Most children continue to live with their mother and have contact with their father at specified times (Rhoades et al., 2000). Shared physical custody is not directly mentioned in the legislation. A recent paper prepared for the Australian Institute for Family Studies (Carberry, 1998) estimated that about 2.3 percent of cases registered with the child support agency in that country were registered under the "shared care" formula (the children spend 40 to 60 percent of time with one parent).

New Zealand

In 2000, a Shared Parenting Bill was introduced into Parliament by a private member, Muriel Newman. The Bill included a rebuttable presumption of 50:50 shared physical custody to replace sole maternal custody, which is the norm in New Zealand (as elsewhere). Among the criticisms of the Bill were that it was too simplistic and adult-focussed, and that it contained "outmoded" labels of custody and access. "Furthermore, the Bill seems to ignore the fact that the vast majority of parents seem to be able to find sensible and pragmatic solutions to the problems posed by family separation without recourse either to lawyers or the courts."[30] The government did not support the Bill. One reason cited was that, although the Bill's objective was laudable, it was unlikely it would be achievable with the provisions in the proposal (the objective was to promote fairness in child custody arrangements.) The government rejected the "one size fits all" approach, and stated that the Bill placed the rights of the parents above those of the children.[31]

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