An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
The third option for reform is a shared parenting model, as recommended in the Report of the Special Joint Committee on Child Custody and Access. Several jurisdictions have recently replaced their custody and access regime with the idea of shared parenting. This model has many similarities to the parenting responsibility option, insofar as it abandons the language of custody and access and, instead, contemplates the allocation of parenting responsibilities within parenting orders and parenting plans. But, unlike the parenting responsibility option, the shared parenting model begins from the assumption that these parenting responsibilities are and should be shared.
One of the most challenging issues that must be addressed when considering this option for reform is the meaning of shared parenting. It is not at all clear what shared parenting means and, yet, if it is to be the basis of statutory regime, it must be concisely defined. A regime of shared parenting is based on the idea that parental responsibilities should be shared by the parents. This begs a range of questions. Which aspects of parental responsibilities should be shared? Are parents expected to share all parental responsibilities? Are they expected to share equally in the physical care of the child, as well as the decision-making authority over the child? Or, are some aspects of parental responsibility singled out for sharing? If so, which ones? And if parents only share some aspects of parental responsibility, how would the other aspects of parental responsibility be allocated? These are difficult and crucial questions that need to be answered when designing and evaluating a model for reform based on the idea of shared parenting.
This section begins with an analysis of the scope and meaning of the term shared parenting. It then examines the role of parenting orders and parenting plans within this model. The section explores the ways in which shared parenting responsibility, parenting orders and parenting plans could be defined and elaborated within a reformed Divorce Act. The text highlights the choices and challenges of designing a model based on this concept of shared parenting. And, it assesses the advantages and disadvantages of this model for reform.
Despite the important differences, many of the general questions to be addressed by this model of shared parenting are quite similar to those considered in the parenting responsibility model. Both involve a consideration of the scope and content of shared parenting, shared parenting orders and shared parenting plans. As discussed in Option Two above, this section also considers the range of potential relationships between shared parenting orders and shared parenting plans. Although some jurisdictions that have adopted a shared parenting approach have placed primary emphasis on private ordering through parenting plans, there is nothing inherent in this model that would require that. This section draws on examples from many of the same jurisdictions as in the parenting responsibility model, but now emphasizing the shared parenting dimensions of the legislative schemes.
The Special Joint Committee recommended that
"the terms ‘custody’ and ‘access’ in the Divorce Act be replaced with the term ‘shared parenting’, which shall be taken to include all the meanings, rights, obligations and common-law and statutory interpretations embodied previously in the terms ‘custody’ and ‘access.’"305 A number of other jurisdictions have also adopted a model based on shared parenting responsibility. Australian law, for example, which has replaced the language of custody and access with that of parenting responsibility, provides that parents share these parental responsibilities. The U.K. scheme uses the language of joint parental responsibilities. This section explores the potential scope and meaning of the term shared parenting.
Meaning of Shared Parenting
Distinguishing Shared Parenting from Joint Custody
The crucial issue to be addressed in this third option is the meaning of the term shared parenting. In particular, it is important to determine whether it has a meaning different from joint custody.
"Joint legal custody" describes a custodial arrangement in which both parents retain decision-making authority over a child.306
"Joint physical custody" describes an arrangement in which children spend roughly equal amounts of time residing with each parent.
While the literature suggests that joint custody is often a beneficial arrangement for children, the literature also indicates that these arrangements work best when they are voluntary.307 Joint custody requires a high degree of cooperation and communication between the parents. Although divided, expert opinion appears to support the position that this kind of cooperation and communication cannot be forced onto separating and divorcing parents against their will. And, parents who contest custody to the point of litigation are unlikely to be able to develop the kind of collaborative and trusting relationship that is required to make an arrangement of joint custody work for the children. These concerns are reflected in the courts reluctance to order joint custody against the wishes of the parents. Appellate decisions in the late 1970s and early 1980s expressed reservations about ordering joint custody.308 Since that time, the clear trend in the case law has been not to impose joint custody when there is serious conflict between the parties.309
The debate about joint custody has increasingly focussed on presumption that a particular parenting arrangement is always in the best interests of children. Again, while expert opinion is divided, there appears to be a growing recognition that no one post-divorce parenting arrangement is most beneficial for children.310 This approach has been expressly endorsed by the federal government. One of the basic principles endorsed in its response to the report of the Special Joint Committee is that
"one size does not fit all." The response states that
"it is essential to recognize that no one model of post-separation parenting will be ideal for all children."312 Accordingly, the response further states that it does not support any presumptions, including a presumption in favour of joint custody.313a
If shared parenting is to be a basis for the reform of custody and access, it would, therefore, be important to determine whether it can be differentiated from joint custody, specifically from a presumption in favour of joint custody.
In the next section, the paper examines the recommendations of the Special Joint Committee. It will consider the extent to which the Special Joint Committee’s recommendations can be distinguished from a model based on a presumption of joint custody. In the sections that follow, the paper examines the particular ways in which the idea of shared parenting has been incorporated into other statutory regimes. Again, the analysis looks at the extent to which statutory models have been, or could be, devised that use the language of shared parenting in a way that is distinguishable in some way from a presumption in favour of joint custody.
Special Joint Committee
The Special Joint Committee recommended that:
The terms ‘custody’ and ‘access’ no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term ‘shared parenting’, which shall be taken to include all the meanings, rights, obligations and common-law and statutory interpretations embodied previously in the terms ‘custody’ and ‘access’.313b
The Committee does not provide a clear definition of shared parenting. It describes ‘shared parenting’ as combining
"in one package all the rights and responsibilities that are now embodied in the two existing terms—custody and access—and leave decisions about allocating the various components to parents and judges." The Committee also attempts to distinguish shared parenting from a presumption in favour of joint physical custody. It states that it is not recommending that
"a presumption that equal time-sharing, or what is currently referred to as joint physical custody, is in the best interests of children. The Committee recognizes that the details of time and residence arrangements for children will vary with the family involved."314 According to the Committee
"Whether an equal time-sharing arrangement is in the interests of a particular child would have to be determined on a case-by-case
basis, with a full evaluation of the child’s and parents’ circumstances."315 Later in the report, the Committee again emphasizes that children are not served by legal presumptions in favour of either parent, or any particular parenting arrangement. After discussing the advantages of joint custody, the Committee concludes that
"legislation that imposes or presumes joint custody as the automatic arrangement for divorcing families would ignore that this might not be suitable for all families, especially those with a history of domestic violence or of very disparate parenting roles."
At the same time, the Committee also describes the new regime of shared parenting in the following terms:
Under the new regime and terminology formulated by this Committee, in almost all cases both parents will continue, after separation and divorce, to exercise their pre-separation decision-making roles with respect to their children.316
While the Special Joint Committee is careful to say that it is not establishing a presumption in favour of joint physical custody, this passage does suggest that shared parenting, as envisaged by the Committee, is a presumption in favour of joint legal custody. The concept of shared parenting that the Committee endorses is one in which there is shared legal decision-making, and shared legal decision-making is, in effect, the very definition of joint legal custody. The recommendations are, then, a presumption in favour of a particular kind of custodial arrangement—shared legal decision-making—despite the Committee’s claims to the contrary. It is difficult, therefore, to reconcile this basic tenet with the Committee’s simultaneous insistence that the Divorce Act ought not to include any presumptions.
There is a lack of clarity in the meaning of the concept of shared parenting. Some advocates of shared parenting envisage a regime of joint physical custody, while others seek only joint legal custody. These divisions may account for the absence of a clear definition of the meaning of shared parenting, even among its major advocates. The ambiguity surrounding the term is also directly related to its proximity to the idea of joint custody, and to the apparent consensus rejecting a presumption in favour of joint custody. It would seem that shared parenting has not been more closely defined precisely because its definition would too closely approximate the very idea that has been rejected.
Meaning of Shared Parenting (continued)
The Meaning of Shared Parenting in Other Jurisdictions
The language of shared parenting has been incorporated in very different ways into the laws of a number of other jurisdictions. Some of these jurisdictions have done so in a way that appears to closely resemble a presumption in favour of joint custody. Other jurisdictions have included the language of shared parenting in ways that more clearly differentiate it from a presumption in favour of joint custody.
The Florida statute provides that a
"court shall order that the 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."317 Shared parenting responsibility is defined as a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.318 While the statute uses the language of shared parenting, it is generally described as a presumption in favour of joint legal custody.319
In the United Kingdom, the allocation of parenting responsibility is dependent on the marital status of the parents. The Children Act does not use the language of shared parenting, but incorporates the idea of shared parental responsibility, when the child’s mother and father are married.322 The Act provides that when more than one person has parental responsibility,
"each of them may act alone and without the other in meeting that responsibility."323 The model is described as one of
"joint but independent responsibility," in which each parent may act unilaterally in meeting their parental responsibility.324
The statute does not mandate shared physical custody or residence. Residence continues to be decided separately from parental responsibility in and through residence orders.
In Australia, the Family Law Act does not actually use the term shared parenting, but does incorporate the idea that parenting responsibility is shared. The Act includes the statement of principle that
"parents share duties and responsibilities concerning the care, welfare and development of their children" and that
"parents should agree about the future parenting of their children."325 It provides that
"each of the parents of a child who is not 18 has parental responsibility for the child." Subsection (2) provides that this parental responsibility continues to exist
"despite any changes in the nature of the relationships of the child’s parents."326 The law further provides that parental responsibility is not affected by the making of a residence, contact or other order except to the extent, if any, as is expressly provided in the order or is
necessary to give effect to the order.327
Like the U.K. Act, the Australian regime does not mandate shared physical custody or residence. Residence continues to be decided separately in and through residence orders.
There has also been some debate within the literature as to whether the Family Law Act has created a presumption in favour of shared parenting.328 Richard Chisholme, for example, argues that there is great doubt about whether the act actually imposes a presumption of shared parenting, and about the strength of the presumption created, if any.329 The extent to which the legislation can be said to impose this presumption may depend on the implications of parenting orders for parenting responsibility. As mentioned, the Act provides that parental responsibility is not affected by a parenting order, unless expressly provided by such order. As such, parenting responsibility continues to be shared after a parenting order, except to the extent that the order itself qualifies the parenting responsibility of the parent(s). This could be seen to create at least a weak presumption in favour of shared parenting: parenting is shared unless a court order or private agreement provides otherwise. It is not, however, a strong presumption, as found in the Florida legislation, since it does not in any way stipulate that the courts shall order shared parenting. Nor does it stipulate that parties should negotiate shared parenting in the parenting plans. Rather, shared parenting can perhaps be better described as the default position under the Australian Act.
There has also been a debate about whether the Australian scheme imposes a model of joint or independent shared parenting—that is, whether parents can exercise their decision-making authority independently of the other parent, or whether they must consult with the other parent. The issue has been addressed by the Australian Family Court:
In the absence of a specific issues order, we think it unlikely that the Parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters. This is never the case when parents are living together in relation to day-to-day matters, and the impracticability of such requirement when they are living separately only has to be stated to be appreciated.
As a matter of practical necessity either the residential parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation.330
As interpreted by the Court, then, the Australian scheme allows for independent decision-making on day-to-day matters, but requires joint decision-making on, for example, major medical, educational and religious decisions. If this was considered to be a desirable outcome, this particular allocation of parental responsibility could be made more clear on the face of the statutory regime itself.
The Maine Domestic Relations Act provides a rather different model that uses the language of both sole, allocated and shared parental rights. Shared parental rights are defined in s.1501(5) as follows:
(5). "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.
The statute does not, however, include a presumption in favour of such shared parenting. Rather, it contrasts shared parenting with sole parental rights and responsibilities, which 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."331
The Act further provides that,
"when 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." The section 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 Domestic Relations Act, thereby, creates a presumption in favour of enforcing shared parenting arrangements voluntarily agreed to by the parents. In this respect, the Maine legislation is a hybrid, combining some of the potential advantages of shared parenting, while stopping short of establishing it as a legal presumption to be imposed even against the wishes of the parents. Nor does it establish shared parenting as a default position. Rather, it simply endorses shared parenting to be one among a range of possible parenting arrangements, and
tells the courts to defer to shared parenting arrangements agreed to by parents.
Summary and Assessment
It should be noted that in all of these approaches, the aspect of parenting responsibility that is to be shared between the parents is decision-making authority. None of the three models specifically mandate or contemplate shared residence. Both Florida and Maine specifically define shared parenting as joint decision-making authority over the child. While the U.K. and Australian legislation defines parenting responsibility more vaguely, commentators and case law have suggested that it includes joint decision-making authority. It does not include or require shared or joint physical residence. As a result, all of these approaches to shared parenting require that the child’s residential time be allocated separately, according to the best interests of the child criteria.
Based on these jurisdictions, it is possible to identify three models for a regime that incorporates some notion of shared parenting.
A Presumption of Shared Parenting (Florida)
The legislative schemes that have incorporated the language of shared parenting in a way that most closely resembles a presumption in favour of joint legal custody are questionable models on which to base reforms to the Divorce Act. The guiding principles for reform stipulate that the Divorce Act should not be reformed to include presumptions. The Florida legislation clearly establishes a presumption in favour of joint legal custody.
The legislative schemes that have incorporated the language of shared parenting in a way that involves a weak presumption, or a default position, in favour of shared parenting might be more appropriate models. The U.K. and the Australian Acts can both be seen as examples of these weak presumptions, or default approaches, to shared parenting. However, these schemes are not without their disadvantages.
As discussed in relation to Option Two, both the U.K. and Australian schemes include a very general definition of parental responsibility, with no elaboration of its particular dimensions. This generality and vagueness have been the subject of considerable criticism. In the U.K. context, John Eekelaar, for example, has observed
"parental responsibility has been one of the more elusive concepts of the Children’s Act 1989."332 As a result, the courts have been called upon to determine the scope and content of parental responsibility.
The same can be said in the Australian context. While many commentators welcomed the effort to shift the focus of Australia’s child custody law to a more child-centred approach that encouraged parents to reach their own cooperative agreements, commentators have also been critical of the many uncertainties created by the legislative reforms. Many have been critical of the vague definition of parenting responsibility. As Ingleby argues, no one really knows what parenting responsibility means.333 Dewar has similarly argued that the Act is unclear as to how parenting responsibility is to be shared. The Act is also unclear as to whether parenting responsibility is independent or cooperative, and whether the residential parent has any sphere of freedom of unilateral action, independent of joint decision-making and joint parenting.334 The Australian Family Court has also observed that the definition of parental
responsibility in the Family Law Act, as amended by the Family Law Reform Act 1995,
"provides little guidance, relying as it does on the common law and relevant statutes to give it content."335
However, as also discussed in Option Two above, it would be possible to design a regime based on the idea of parental responsibility, with a more comprehensive definition of what that parental responsibility entails. The Scottish legislation provides an elaborate definition of parental responsibility, and the Washington legislation provides a very detailed description of parenting functions.336 Either could be used as the basis for a more comprehensive definition of parental responsibility.
Moreover, the limitations of this approach discussed in relation to Option Two are no longer obstacles in relation to Option Three. One of the problems that a residence and contact order regime presented to a neutral model of parenting responsibility was the extent to which it presupposed a certain degree of shared parenting responsibility. A regime based on residence and contact orders, therefore, fits better within Option Three’s shared parenting model.
The hybrid approach, which uses the language of shared parenting alongside the language of sole and allocated parenting responsibilities, may also provide a useful model. The Maine legislation, which sets out shared parenting responsibilities as one among a range of possible parenting arrangements, is a model for incorporating the language of shared parenting into a statutory regime, without establishing any presumption in favour of any particular parenting arrangement. In this respect, the model may more closely approximate Option Two, but it does so in a way that expressly uses the language of shared parenting. It incorporates the language of shared parenting, but does not create a general presumption in favour of it. As noted, the statute does, however, provide a presumption in favour of private agreements to shared parenting—that is, when parents have agreed to shared parenting, the court should award it, unless there is substantial evidence to the contrary.
The first option establishes a strong legislative presumption in favour of shared decision-making authority. It would appear to violate the guiding principle that the Divorce Act should not include any presumptions. The second option can be seen to establish a weaker presumption, or default position, in favour of shared decision-making authority. Although a case could be made that it would not, strictly speaking, establish a presumption in favour of joint legal custody, this approach would likely prompt parents to expect to share major decision-making authority, unless an agreement or court order provide otherwise. The effect is the same as a presumption in favour of joint legal custody. The third option simply establishes shared decision-making as one possible parenting arrangement, and does not represent much of a departure from the current regime.
Thus, the two options that would result in a significant change from the existing regime would both appear to violate the guiding principle that the Divorce Act should not include any presumptions. The first option is a presumption. The second option is not worded as a presumption, but the effect is the same. While it may be possible to frame shared decision-making as a principle rather than a legal presumption, it is important to acknowledge that it would still, in effect, be establishing one particular type of parenting arrangement as the model for post-divorce parenting.
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