An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
2001-FCY-2E
OBJECTIVES AND CHALLENGES FOR REFORM (continued)
OTHER JURISDICTIONS (continued)
Australia’s Family Law Reform Act (continued)
Evaluation
An interim report on the Family Law Reform Act has attempted to assess some of the immediate and longer terms effects of the Act, over a three-year period.
Litigated Disputes
Family Court statistics indicate that there has been an increase in the number of applications for residence, contact and specific-issues orders since the Act was passed. These statistics also show a steady increase in applications due to an alleged contravention of a child order (see Table 1).
|
Year
|
Number of contact orders sought
125
|
Number of residence and specific issues orders sought
126
|
Number of orders for contravention of child order
127
|
|---|---|---|---|
|
1994-95
|
14,144
|
13,315
|
n/a
|
|
1995-96
|
13,814
|
12,595
|
786
|
|
1996-97
|
21,897
|
33,304
|
1,434
|
|
1997-98
|
23,958
|
38,411
|
1,659
|
Solicitors interviewed in the Australian study were also of the view that there was an increase in disputes between parents following the making of parenting orders.
The majority of such disputes were said to be instigated by non-resident fathers. Some solicitors said this was a result of the ‘unrealized hopes’ and ‘increased bitterness’ of fathers who had expected to obtain greater parenting rights under the reforms, and/or were critical of mothers for failing to share decision-making responsibilities. Others said the increase in disputes stemmed from contact fathers who expected mothers to do ‘the lion’s share of the work’ but ‘took every opportunity’ to challenge their care of the children and/or the lack of consultation about day-to-day decisions.128
The solicitors interviewed in the Australian study also indicated that they were witnessing "applications involving trivial or ‘technical’ breaches of orders, which had not existed before the reforms."
129
Contact
The Australian regime states, as a general principle, that "children have a right of contact, on a regular basis, with both parents."
This principle is expressed to apply "except when it is or would be contrary to a child’s best interest."
130 This right of contact was one of the most contentious aspects of the Family Law Reform Act, 1995. While many argued that it was a positive development, ensuring that non-resident parents would be more involved with their children, others were concerned about the potential for abuse.
First it was thought that the reforms provided a contact parent who wished to harass his former partner with the opportunity to seek orders relating to the minutiae of her care of the child. Second, coupled with the statutory exhortations to ‘share’ and ‘agree’ about parenting arrangements, the child’s right to contact was seen to have the potential to be used to pressure a mother with legitimate concerns about her child’s welfare into an agreement that compromised her own safety and the child’s best interests.131
In contrast to the U.K. courts, however, the Australian Family Court has held that a child’s right to contact is qualified by the best interests principle.132 The provisions in s.60B(2) were held by the court not to create any presumption in favour of contact, but rather to provide the context for considering the child’s best interests.
The Interim Report found that the rate of orders refusing contact at interim hearings has dramatically declined since the introduction of the reforms. By way of contrast, the rate of refusing contact in final orders has not markedly changed with the introduction of the reforms.
Although the majority of interim contact applications involve allegations of potential harm to the child, usually because of domestic violence, it is now rare for contact not to be ordered at an interim hearing. In some regions, post-Reform Act orders for child to live ‘week about’ with each parent until trial are not uncommon, and have been made despite allegations of domestic violence. Such orders have been made on the basis that it would be unfair to create a status quo in favour of one parent before the allegations are tested at trial.133
According to the report, it is clear that this change in interim orders is "at least in part attributable to the Reform Act principles, particularly, the ‘right to contact’ principle in s.60B(2)(b) and the idea of parental ‘equality’ which is said to be in keeping with the ‘spirit of the reforms.’"
134 While the impact of the principle of contact is not as severe as in the U.K., the findings would suggest that there is at least some reason to be concerned with the way in which the principle in favour of contact is operating in the context of family violence, particularly at the interim stage.
Parenting Plans
The Interim Report found that parenting plans are not being used. In fact, the report documents a decrease in the number of private agreements after the enactment of the reforms.
One area of the Reform Act amendments that appears to have had, at most, minimal impact upon the practice of solicitors, is that dealing with parenting plans. Only three of the solicitors interviewed had assisted parties to draw up a parenting plan, and only one of those plans had been subsequently registered. Similarly, an overwhelming majority of the solicitors who responded to the questionnaires (91 percent) noted that they were using parenting plans less frequently than they had used child agreements under the pre-Reform Act legislation. This is supported by Family Court statistics, which show that far fewer parenting plans have been registered than child agreements prior to the reforms.135
The solicitors interviewed often referred to the cumbersome registration and amendment requirements required under the Australian scheme as impediments to the use of these parenting plans.
The amendments to the Australian Family Law Act to include parenting plans appear, then, to have done little to advance the general objectives of encouraging private agreements and reducing conflict.
Violence Provisions
The provisions are intended to address the interrelationship between orders made by the Family Court and domestic violence orders made under state law by courts of summary jurisdiction, and have been criticized as being unduly complicated. The Interim Report found that courts are rarely using the provisions in Division 11 of the Act. Judges and solicitors alike commented that Division 11 is "too complicated"
and "too cumbersome."
The Report also cited a recent review of the operation of Division 11, which found that s68R "is rarely used."
136 Their review of unreported judgments similarly indicated that "while the existence of family-violence orders is widespread in contact proceedings, Division 11 is rarely referred to when deciding appropriate contact arrangements, and none of the judgments mentioned s.68K."
137
Maine’s Domestic Relations Act
Parental Rights and Responsibilities Orders
The Maine Domestic Relations Act replaces the idea of custody and access with that of parental rights and responsibilities orders. The Act provides that a court order awarding parental rights and responsibilities must include allocated parental rights and responsibilities, shared parental rights and responsibilities or sole parental rights and responsibilities.
Allocated parental rights are defined as follows:
"Allocated parental rights and responsibilities" means that responsibilities for the various aspects of a child’s welfare are divided between the parents, with the parent allocated a particular responsibility having the right to control that aspect of the child’s welfare. Responsibilities may be divided exclusively or proportionately. Aspects of a child’s welfare for which responsibility may be divided include primary physical residence, parent-child contact, support, education, medical and dental care, religious upbringing, travel boundaries and expenses and any other aspect of parental rights and responsibilities. A parent allocated responsibility for a certain aspect of a child’s welfare may be required to inform the other parent of major changes in that aspect.138
Shared parental rights are defined as follows:
"Shared parental rights and responsibilities" means that most or all aspects of a child’s welfare remain the joint responsibility and right of both parents, so that both parents retain equal parental rights and responsibilities, and both parents confer and make joint decisions regarding the child’s welfare. Matters pertaining to the child’s welfare include, but are not limited to, education, religious upbringing, medical, dental and mental health care, travel arrangements, child care arrangements and residence. Parents who share parental rights and responsibilities shall keep one another informed of any major changes affecting the child’s welfare and shall consult in advance to the extent practicable on decisions related to the child’s welfare.139
The Act further provides that an award of shared parental rights and responsibilities may include an allocation of the child’s primary residential care to one parent, and rights of parent-child contact to the other, or a sharing of a child’s primary residential care by both parents.140
Sole parental rights are defined as follows:
"Sole parental rights and responsibilities" means that one parent is granted exclusive parental rights and responsibilities with respect to all aspects of a child’s welfare, with the possible exception of the right and responsibility for support.
The Act does not establish a presumption or preference in favour of any one of these three orders. Section 1653(D)(1) provides that the court should make its determination on the basis of the best interests of the child.141 The Act does, however, provide that "[w]hen the parents have agreed to an award of shared parental rights and responsibilities or so agree in open court, the court shall make that award unless there is substantial evidence that it should not be ordered."
142 The section further provides that the court shall state its reasons for not ordering a shared parental rights and responsibilities award agreed to by the parents. The Maine scheme, thereby, creates a presumption in favour of enforcing shared parenting arrangements voluntarily agreed to by the parents.
Violence
The Maine Domestic Relations Act has a number of provisions specifically directed to the issue of family violence. It includes the following general statement of legislative finding and purpose about relationships among family members in determining the best interests of the child:
The Legislature finds that domestic abuse is a serious crime against the individual and society, producing an unhealthy and dangerous family environment, resulting in a pattern of escalating abuse, including violence, that frequently culminates in intrafamily homicide and creating an atmosphere that is not conducive to healthy childhood development.143
The relevance of family violence is very specifically addressed in section 1653(6):
A court may award primary residence of a minor child or parent-child contact with a minor child to a parent who has committed domestic abuse only if the court finds that the contact between the parent and the child is in the best interest of the child and that adequate provision for the safety of the child and the parent who is a victim of domestic abuse can be made [Emphasis added].
The Act also extensively addresses the conditions of parent-child contact in the context of domestic violence, setting out and authorizing the use of a range of specific protective measures.144 The court may impose a range of restrictions and conditions on contact, including requiring that the contact be supervised, that exchange occurs in a protected setting, and that overnight visits be prohibited. It also allows a court to order additional protections, such as ensuring that the address of the child and the victim of violence be kept confidential.
No material was available assessing the impact of the Maine legislation.
Washington’s Parenting Act, 1987
Overview
In Washington, the Parenting Act 1987 replaced custody and access with a regime based on parenting plans. The law is an extensive code for regulating post-separation and divorce parenting. It sets out the requirements of parenting plans, the criteria by which courts should review and approve these plans or allocate parenting functions in the absence of parental agreement or both. It also includes extensive provisions on the restrictions and limitations to the allocation of parenting functions within parenting plans. The Act begins with the following statement of policy:
Parents have the responsibility to make decisions and perform other parental functions necessary for the care and growth of their minor children. In any proceeding between parents under this chapter, the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities. The state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests. The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.
Parenting Plans
The parenting plan is the central feature of the Washington legislation. The statute requires all separating parents to file a parenting plan that allocates their parenting functions.145
The Act defines parenting functions as "those aspects of the parent child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child."
Parenting functions include the following:
All parenting plans must include the child’s residential schedule, the allocation of decision-making authority, and a dispute-resolution mechanism to deal with future disputes between the parents.147
In terms of decision-making, the Act provides that the parenting 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…"
It also states that, "[r]egardless of the allocation of decision-making in the parenting plan, either parent may make emergency decisions affecting the health or safety of the child."
The Act further provides that "[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent"
and "[w]hen mutual decision-making is designated but cannot be achieved, the parties shall make a good-faith effort to resolve the issue through the dispute resolution process."
148
In terms of residence, the Act provides that the parenting 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 provision for holidays, birthdays of family members, vacations, and other special occasions."
149
Criteria for Allocating Parenting Functions
One of the distinctive features of the Washington Parenting Act is that it provides criteria for evaluating the allocation of different aspects of parenting responsibility within a parenting plan. While the best interests of the child remain the general guiding principle, the Act identifies specific factors to be taken into account in the allocation of decision-making authority and in the allocation of the child’s residence.
- Dispute-resolution process
- In ordering a dispute-resolution process, the Act directs the court to consider
"all relevant factors including"
any"differences between the parents that would substantially inhibit their effective participation in any designated process; the parents’ wishes or agreements, and if the parents have entered into agreements, whether the agreements were made knowingly and voluntarily; and differences in the parents’ financial circumstances that may affect their ability to participate fully in a given dispute resolution process."
150 - Allocation of Decision-making Authority
- The Act states that the court shall approve agreements allocating decision-making authority if it finds that the agreement is knowing and voluntary. It provides that the court shall order sole decision-making authority to one parent if it finds that both parents are opposed to mutual decision-making, or that one parent is opposed to mutual decision-making and such opposition is reasonable.
- In allocating decision-making authority between the parents, the Act then directs the court to consider the history of participation of each parent in decision-making, whether the parents have a demonstrated ability and desire to cooperate with each other in decision-making, and the parents geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.151
- Residential Schedule
- In terms of the child’s residence, the Act directs the court to make residential provisions
"which encourage each parent to maintain a loving, stable and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances."
The court is further directed to consider the following: -
- Factor (i) shall be given the greatest weight.152
- While identifying a long list of factors to be taken into account in determining the child’s residence, the Washington schemes gives the greatest importance to the child’s relationship with the parent, including a consideration of which parent provides the primary care for the child.153
Limitations on Parenting Plans
The Washington Parenting Act, 1987 places a number of restrictions on temporary and permanent parenting plans. All of the above provisions dealing with designation of a dispute-resolution process, the allocation of decision-making authority, and the child’s residential schedule are subject to these restrictions. The restrictions are intended to ensure that the scheme protects children and vulnerable parents from a range of harms related to violence, emotional abuse, high conflict and inadequate parenting.
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:
A parent’s residential time with a child is also to be limited if "the parent has been convicted as an adult of a sex offense"
under the relevant state laws.155 The statute further provides that a parent’s residential time with the child shall be limited if it is found that the parent resides with a person who has engaged in any of the above mentioned conduct.156
Any limitations imposed by the court on the parent’s residential time with a child "shall be reasonably calculated to protect the child from physical, sexual, or emotional abuse or harm that could result if the child has contact with the parent requesting residential time."
The section provides that if the court finds that the limitation will not adequately protect the child from harm or abuse, the court shall restrain the parent from all contact with the child.157 The section further provides that if the court expressly finds that contact between the child and the parent will not cause physical, sexual or emotional abuse or harm to the child, and that the probability of recurrence of the harmful or abusive conduct is so remote that it would not be in the best interests of the child to impose the limitations, then the court need not apply the limitations.158
The Act also provides that the court may limit any provision in a parenting plan, if any of the following factors exist:
- (a) neglect or substantial non-performance of parenting functions;
- (b) long-term emotional or physical impairment that interferes with the performance of parenting functions;
- (c) a long-term impairment resulting from substance abuse that interferes with the performance of parenting functions;
- (d) the abusive use of conflict by a parent that creates the danger of serious damage to the child’s psychological development;
- (e) a parent has withheld access to the child for a protracted period without good cause; or
- (f) any other factors or conduct that the court finds expressly adverse to the best interest of the child.159
The Washington legislative scheme thus not only addresses violence as a limiting factor, but is also one of the few statutory regimes to incorporate some reference to the kind of factors that would undermine cooperation in a high conflict family. It is also one of the few statutory regimes to specifically address the problems associated with inadequate parenting, such as neglect, substantial non-performance of parenting functions and substance abuse. The designation of a dispute-resolution mechanism other than a court, mutual decision-making, and even a child’s residential schedule are expressly limited by the existence of willful abandonment or refusal to perform parenting functions, and physical, sexual or emotional violence or abuse. The Act also gives the court considerable discretion in further restricting the dispute resolution process, shared decision-making and the child’s residential schedule if it identifies any of the other listed conduct or harms.
Evaluation of Legislation
A major evaluation of the Washington Parenting Act is currently under way, and research results are not yet available. A number of small studies to date have suggested that the Act has brought about some changes in the allocation of decision-making authority, but no significant change in children’s residential schedules.
Jane Ellis conducted a study, based on 300 cases, of the impact of the Parenting Act in the first few years after the enactment.160 The study found a significant increase in the number of parenting orders or plans that provided for joint decision-making.161 Joint residence arrangements had increased from 3 percent to 20 percent; custody to the mother decreased from 79 percent to 70 percent, and custody to the father decreased from 18 percent to 10 percent. However, the study found a limited number of patterns for weekly residential time were being used by parents. Forty-one percent of the cases involved residential time on alternative weekends, and an additional 26 percent involved residential time on alternate weekends with one daytime visit per week or alternative week. The contact patterns then were not significantly different from those typically negotiated in custody and access regimes.
A more recent, but smaller, study has been conducted by Dr. John Dunne, a psychiatrist and member of the committee that drafted the Parenting Act. Dunne’s study involved 50 families who divorced during the first year parenting plans were required in Washington, and 50 families who divorced the previous year. The study did not demonstrate any beneficial effects on the post-divorce quality of the child’s relationship with either parent.162 Dunne observes that some of the specific statutory requirements may have undermined the objectives of the legislation, noting specifically the fact that parents must negotiate a temporary and a permanent parenting plan.
Diane Lye is currently conducting a study of the impact of the Washington Parenting Act. Lye appeared before the Special Joint Committee on Child Custody and Access. In her submissions, she distinguished between the impact of the Act on "more affluent parents, who have the time and money to meet with experts and develop plans that really meet their needs, and impact on low-income people, for whom the legislation poses a particular disadvantage."
163
American Law Institute Proposals
The American Law Institute (ALI) has recently published draft proposals for the law dealing with children on family dissolution.164 The proposals recommend the adoption of a parenting regime quite similar to the Washington Parenting Act. The cornerstone of the proposal is the parenting plans. The ALI recommends that all separating and divorcing parents seeking parenting orders file a parenting plan. Joint plans must also be approved by the court. If parents do not agree, the court must formulate a plan.165
A parenting plan must set forth the details of the custodial arrangements, specifying the time that the child is to spend with each parent, and the details of decision-making authority, specifying which parent is to make significant decisions regarding the child’s education, health care and other important matters. The plan must also provide for the resolution of future disputes.
If parents do not agree to a parenting plan, the ALI proposes criteria that the court should consider in formulating a plan. The allocation of custodial responsibility is to be determined according to the "approximation rule."
According to the approximation rule, "the court shall allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents’ separation.166 The allocation of decision-making authority, by contrast, is to be made according to the best interests of the child, with a specific view to "(a) the allocation of custodial responsibility; (b) the level of each parent’s participation in past decision-making on behalf of the child; (c) the wishes of the parents; (d) the level of ability and cooperation the parents have demonstrated in decision-making on behalf of the child; (e) prior agreements of the parties; and (f) the existence of any limiting factors."
167
As with the Washington law, the ALI proposals set out a range of factors that would limit the allocation of parental responsibility. These limiting factors include abuse, neglect and abandonment of a child, domestic abuse, substance abuse and persistent interference with access.168 If a parent has engaged in any of these activities, "the court should impose limits that are reasonably calculated to protect the child or child’s parent from harm."
These limitations include a restriction of custodial responsibility, supervised custodial time, protected exchange, denial of overnight custodial responsibility, and the completion of a program for perpetrators of violence or substance abuse. The proposals further recommend that if a parent has engaged in any of these activities, the court may not allocate custodial or decision-making responsibility to that parent without making special written findings that the child and parent can be
adequately protected.
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