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

2001-FCY-2E

OBJECTIVES AND CHALLENGES FOR REFORM (continued)

CHALLENGES (continued)

High Conflict

High parental conflict has been identified as a serious risk to children of separation and divorce. There appears to be an increasing consensus among child development experts that parental conflict is a major source of reduced well-being among children of separation and divorce.33 Janet Johnston’s work, for example, has estimated that the children of high conflict families are four to five times more likely to have emotional and behavioural problems of clinically significant proportions.34

The Special Joint Committee describes high conflict families as those unable to move beyond the difficult transition of separation and divorce.

Some families seem to get stuck at this point, however, with one parent or both intent on maintaining such a degree of conflict and tension that it becomes impossible to resolve parenting and property decisions without a great deal of intervention from legal and mental health professionals. The incidence of such divorces is estimated at between 10 and 20 percent of the divorcing population. Virtually everyone involved in family law agrees that the conflict between many of these couples is so intractable that there is never likely to be a legal remedy for their problems. These are couples who perpetuate their conflict regardless of developments in the lives of their children, their own remarriage and prohibitive legal expenses.35

These families are characterized by high rates of litigation and relitigation, inability to communicate, rigidity and lack of cooperation, allegations of inadequate parenting, and extremely high degrees of anger, mistrust and embitterment.36

The literature on high-conflict families has identified a range of problems and challenges for the resolution of parenting disputes on divorce. Johnston’s work on high conflict divorce has suggested that the prognosis is poor for high conflict parents to develop cooperative parenting approaches.37 Research in the area has begun to reveal that striving for cooperative parenting is increasingly recognized as an inappropriate goal for high conflict families. There is also an emerging consensus within the literature on children and divorce that shared parenting and continued parental contact can have negative effects on children in high conflict families:

Recent research indicates that joint physical custody and frequent child-nonresidential parent contact have adverse consequences for children in high-conflict situations, and that joint physical custody and frequent child-nonresidential parental contact do not promote parental cooperation.38

Rather, what these families require is a greater severing of the relationship between the disputing parents.

Many experts have also highlighted the challenges that these high-conflict families present to the family justice system, particularly in the context of disputes over custody and access. Johnston and Roseby, for example, have described the challenges that these families present to the family justice system, to themselves and to their children:

Highly conflictual divorcing families make heavy demands on the energies of family law attorneys, mediators, custody evaluators, counselors, and even judges. Despite the increased attention they receive, these clients are more likely than any other group to be hostile and unappreciative of professional efforts. They may fail to pay assigned fees, allege bias on the part of court officers, and even try to report or sue professionals for malpractice.39

What is most troubling is that these families often do not seem to resolve their conflicts despite the increased attention they receive and the unusual amount of private and public resources expended on their behalf. Instead, their children continue to be exposed to the constant stress and disruption of their parents’ disputes, unremitting anger, and distrust.40

As a result, increasing attention is being directed to developing approaches to address the special needs of high conflict families. These families will not be able to resolve their disputes through cooperation, education and primary dispute resolution. Alternative forms of intervention are, therefore, required to help these families resolve their disputes. Many experts argue for a process of early intervention and streaming. There is a heavy emphasis on developing appropriate services to deal with these high conflict families. The Special Joint Committee, for example, recommended that the "federal, provincial and territorial governments work together to encourage the development of effective methods for the early identification of high-conflict families seeking divorce. Such families should be streamed into a specialized, expedited process and offered services designed to improve outcomes for children." 41 These are important initiatives and ought to be supported.

However, there has been very little attention paid to incorporating references to the needs of high conflict families into legislation. The focus has been almost entirely on services. One of the few statutory regimes to incorporate some reference to the kind of factors that would undermine cooperation in a high conflict family is found in Washington state’s Parenting Act.42 The Washington regime, which is examined in greater detail below, identifies a number of circumstances in which the degree of parental conflict should be taken into account when resolving parenting disputes. For example, it provides that a court should not order shared decision-making when a parent’s conduct may adversely affect a child’s best interests, including "the abusive use of conflict by the parent, which creates the danger of serious damage to the child’s psychological development."

The emerging consensus on the negative impact of high conflict on children has been recognized and incorporated as a guiding principle for the reform of custody and access law. The federal government concluded in its Strategy for Reform that "as a general principle, where there are long term, emotional, high conflict parenting disputes, alternatives to co-parenting arrangements requiring cooperation and joint decision-making may be in the child’s best interests." 43

The question that must be addressed in designing and evaluating the options for reform is how a legal regime of parenting should deal with high conflict families. Can or should the needs of high conflict families be dealt within and through divorce services? Or must the legislation itself also reflect the needs of the families? If so, how? There are many ways in which the unique needs of high conflict families might be incorporated into a legislative scheme. The choices would also depend on the nature of the legislative scheme adopted. For example, a regime that encouraged continued relationships and frequent contact between children and parents following separation or divorce, or established shared parenting as a norm, or both, would need to clearly identify the exceptional needs of high conflict families, and the circumstances in which such continued contact or shared parenting would not be appropriate.

Inadequate Parenting

A third area of concern is the protection of children from inadequate parenting, such as neglect, substantial non-performance of parenting duties and substance abuse. In order to promote the general objective of promoting children’s best interests and ensuring that children are not exposed to harmful behaviour, the legislative regime could address the circumstances in which parenting falls below a basic minimum standard. For example, in a regime that generally favoured contact between children and parents following separation or divorce, it would be important to address the circumstances in which the standard of parenting was so poor that it could no longer be said that children’s best interests were being served by contact. The regime might identify the specific circumstances in which it could no longer be said that a relationship between a parent and the child was in the best interests of the child, such as neglect, substantial non-performance of parenting responsibilities, emotional, psychological or substance abuse problems or some or all of these.

There is, however, little legislative precedent for addressing this problem. Very few jurisdictions have attempted to incorporate references to the needs of children who have experienced inadequate parenting. The challenge will be to identify and define the circumstances in which inadequate parenting would be a risk to children, and to set out the implications of this inadequate parenting for the allocation of parenting responsibility.

Specifically setting out the evidentiary requirements, such as "credible evidence" may also help address the concerns raised by the Special Joint Committee regarding false allegations of abuse.44 While the question of creating offenses for false allegations is beyond the scope of this paper, it may be that reforms can be included in the Divorce Act that would reduce any incentives for false allegations. If a finding of family violence requires more than a mere assertion of violence, but, rather, must be supported by "credible evidence," parents may be dissuaded from making allegations that they cannot support.

Summary

Violence, high conflict and inadequate parenting are thus important factors in any reform to legislation that would improve the resolution of parenting disputes during separation and divorce. Including specific references to the needs of children who have experienced family violence, high conflict, inadequate parenting, or some or all of these would also help advance the educational objectives of legislative reform, giving direction and guidance to judges, lawyers and other individuals within the family justice system. It will be important to consider how any option for reform could take the unique needs and circumstances of children who have experienced violence, high conflict or inadequate parenting into account during separation and divorce. In a regime that generally encouraged cooperation between parents, and promoted ongoing relationships between children and parents, specific attention would need to be directed to the unique needs of these families, in which cooperation may, in fact, be impossible, and ongoing relationships may be harmful to children. In reviewing each option for reform, this paper considers the particular ways in which a legal regime might be designed to accommodate the particular needs and dynamics of these families.

Private Choices and Parenting Plans

A sixth theme that runs through the analysis of each option for reform is the appropriate relationship between encouraging parents to reach their own agreements regarding their children, and the need for judicial intervention in decisions regarding the best interests of children. More generally, what is the appropriate relationship between private ordering and judicial discretion. To what extent should the law encourage and respect the private decisions of parents? Should courts be required to defer to the private decisions of the parties? Or do the best interests of the child require that the courts retain their discretionary authority to review these private decisions? And by what criteria would the courts exercise this authority?

A related issue is the extent to which legislation should encourage parents to reach their own agreements. The increasing emphasis on promoting cooperative parental agreements raises a paradoxical question: to what extent should a legislative scheme force parents to agree and cooperate? More often than not, parents find themselves fighting over everything, including their children during separation and divorce. With varying degrees of expert intervention and assistance, many of these parents will be able to develop more cooperative relationships. For example, parenting education that emphasizes that children’s best interests are served by reducing parental conflict and that helps parents develop skills for dealing with post-separation parenting can help many parents in the transition to more cooperative relationships. This is also true of mediation and other forms of primary dispute resolution that assist parents in reaching mutual and consensual agreements. The greater concern, however, is the extent to which the legislation itself should attempt to promote such agreement and cooperative relationships. To what extent should the law encourage particular approaches to resolving parenting disputes that require parents to reach consensual agreements on their parenting arrangements?

Parenting Plans

These issues come to the fore in the context of parenting plans. A parenting plan is a written agreement between the parents, setting out the parenting arrangements in relation to the children. Generally, a parenting plan includes a detailed description and allocation of parenting responsibilities, including the children’s residential schedule, and the allocation of decision-making authority. It might also include provisions regarding child support.

The Special Joint Committee recognized and affirmed the important role that parenting plans can play in restructuring parenting relationships during separation and divorce. In the Committee’s view, parenting plans may help shift parents’ attention "away from labels to the schedule, activities and real needs of the child." The Committee emphasized that parenting plans could be "customized to meet the needs of a particular child and family and have the additional advantage of flexibility. Such plans can account for children’s specific needs, in terms of activities and schedules, but can also provide for much-needed review as the child develops and his or her needs and interests change." 45

Parenting plans have become increasingly popular, and have begun to be used within the existing regime of custody and access by many child custody assessors and other family transition experts. These experts work with separating and divorcing parents to reach agreement about the arrangements for their children, and then attempt to set out those arrangements in a parenting plan. The plan itself often avoids the language of custody and access, and, instead, allocates the various dimensions of parenting between the two parents.

Despite the increasing use of parenting plans, there is no specific recognition of such plans in the Divorce Act. Plans are neither encouraged nor precluded under the existing regime. And, under current law, courts have the power to review private agreements at the time of divorce to determine whether they serve the children’s interests. While courts do not routinely substitute their views for the views of the parents, they do have the authority to do so. The Divorce Act provides no guidance on how to treat such privately reached arrangements.

The American Law Institute has observed that, in the United States, "[p]arenting plans are used increasingly both to encourage parents to plan for the children at divorce and to enable settlement of post divorce dispute without necessity of returning to court." 46 Many states have amended their laws, to expressly recognize the role of parenting plans in the resolution of custodial disputes. Many of the states that have incorporated references to parenting plans have done so while abandoning the language of custody and access—a model for reform that will be examined in more detail in parts II and III of this paper. But, at least some states have recognized parenting plans within a legal regime based on custody and access.

Optional or Mandatory?

Parenting plans could be made optional or mandatory for divorcing parents. The law could be amended to allow parties to enter into parenting plans or to require divorcing parents to file parenting plans, before seeking a custody or access order or both. A third alternative would be to give the courts the discretion to require that divorcing parents seeking a custody and access order file a parenting plan. Illinois for example, requires that parents produce a joint parenting agreement before joint custody is ordered.

In the United States—where parenting plans have become increasingly popular and have been expressly incorporated into state family law—two states, Montana and Washington, require a parenting plan in every case.47 Several other states require that parents submit a written parenting plan before the court will order joint physical responsibility for the child.48 In Texas, a parenting plan is required for joint custody, but the court may make an order without the parties having submitted the plan.49 Yet other jurisdictions give the courts discretion to require a parenting plan, regardless of how the parenting responsibility is going to be allocated.50

In an optional scheme, a parenting plan would complement parenting orders. Parents could be encouraged to resolve their disputes themselves using a parenting plan. If they were unable to do so, then the separating and divorcing parents would be able to seek a parenting order. However, in a mandatory scheme, separating and divorcing parents could not seek a parenting order without first filing a parenting plan. Moreover, in existing mandatory parenting schemes, these parenting orders are then issued in the form of a parenting plan. Thus, in a mandatory scheme, parenting plans would not simply complement a regime of custody and access, parenting responsibility or shared parenting, but rather, would become the central instrument in the resolution of parenting disputes—consensual and contested alike.

There are advantages to both optional and mandatory schemes, and either approach could advance the objectives of reform. A mandatory scheme requires parents to at least try to resolve their disputes through a parenting plan. Even if that cooperative effort fails, it forces parents to focus on allocating the specific aspects of parenting responsibility in accordance with the best interests of the children. An optional scheme, while not requiring parents to file plans, could nevertheless encourage parents to at least consider the option of resolving their disputes using a parenting plan. A specific reference to parenting plans within the Divorce Act could be an important symbolic endorsement of the efforts of a range of family transition experts—lawyers, mediations and counsellors—to get separating and divorcing parents to try to focus on the real parenting needs of their children.

Required Content

If the Divorce Act was amended to recognize optional, mandatory or judicially ordered parenting plans, some attention would need to be directed to the required content of those plans. In the U.S., there is considerable diversity in the specific issues that must be addressed, and in the degree of detail required. According to the American Law Institute, "the greatest amount of detail tends to be required in those states that require parenting plans as a condition of joint custody…. States with more discretionary approaches to parenting plans tend to be less directive about what a plan should include".51 However, there may be advantages to providing more guidance even within an optional scheme. If the objectives of incorporating a reference to parenting plans is to encourage parents to turn their attention to the allocation of their parenting responsibilities, it would be helpful to provide as much guidance as possible to parents about what a parenting plan might include.

Degree of Judicial Deference

If the Divorce Act was to be amended to recognize parenting plans (optional, mandatory or judicially ordered), attention would need to be given to the extent that courts would be expected to defer to these parenting plans. Under the current law, courts have the power to review private agreements at the time of divorce to determine whether they serve the child’s interests.52 In practice, however, courts are reluctant to intervene and change a custodial arrangement agreed to by the parties.

The incorporation of specific reference to a parenting plan into the Divorce Act raises two questions. Would the courts continue to exercise their general authority to review such agreements according to the best interests of the child, and to set aside any agreement that did not, in their view, meet this standard? Would the courts be required to exercise a higher degree of deference to these private agreements?

These questions, in turn, raise more general issues of the appropriate relationship between judicial discretion and private ordering. Should courts be required to defer to the private decisions of the parties? What standard of review would the courts use in reviewing these plans? Should the courts review these plans on the basis of the best interests of the child test or some higher standard of review, such as harm to the child? In many states, the trend is towards requiring the court to adopt a parenting agreement, unless they find that the agreement is not in the best interests of the child.53 The American Law Institute has recommended an even higher degree of deference towards agreements that parents make about their children, requiring the courts to adopt them unless they find that "(a) the agreement is not knowing or voluntary, or (b) the plan would be harmful to the child."54

Limitations

If the Divorce Act was amended to include a specific reference to parenting plans, as well as to require courts to exercise some degree of deference to these private agreements, it would be important to set out any limitations or restrictions to this private ordering.

For example, it would be important to consider the relevance of violence, high conflict and inadequate parenting in reviewing and enforcing parenting plans. Family violence, high conflict or inadequate parenting could be listed as factors to be taken into account in reviewing parenting plans. Or they could be identified as specific exceptions to a principle of otherwise deferring to the private arrangements of the parties. Or they could be recognized as specific limitations to a general statement of principle that encouraged separating parents to enter into parenting plans.

Variation

Some attention would also need to be directed to the standard of review for a modification or variation of a parenting plan. Section 17 of the Divorce Act currently allows for a variation of a custody or access order on the basis of a change in "the condition, means, needs or other circumstances of the child," if the variation is in the best interests of the child.55 The test applied by the courts has been one of material change of circumstances.56 Agreements dealing with custody and access cannot, strictly speaking, be varied. If there is no court order, the parties must bring an application under section 16 of the Divorce Act (or the corresponding provisions of the provincial statutes). The courts are not bound by the agreements, but have generally applied a similar standard of material or substantial change in circumstances.57

The question that needs to be addressed is whether this is the appropriate standard for the variation or modification of a parenting plan. In particular, should the courts also allow a modification to a parenting plan, absent a change in circumstances, based on parental agreement? Any option for reform that includes parenting plans will have to address this question.

Summary

In reviewing each option for reform, this paper considers the extent to which each model might achieve an optimal balance between private ordering and judicial discretion, and the challenges that each model presents to achieving this balance. It considers the particular ways in which parenting plans could be incorporated into a legislative scheme based on custody and access, parenting responsibility or shared parenting, and the role of such plans within these schemes. It pays particular attention to the question of whether a parenting plan regime should be optional and added to a regime of parenting orders, or mandatory and, thereby effectively operating as a regime of parenting orders.