An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
2001-FCY-2E
OPTION TWO: PARENTING RESPONSIBILITYAND PARENTING ORDERS (continued)
PARENTING ORDERS (continued)
Violence, High Conflict and Inadequate Parenting
Given the guiding principles and objectives of protecting children from violence, high conflict and inadequate parenting, the criteria for parenting orders would also need to address the unique needs of children from these separating and divorcing families. While the particular needs of children who have experienced violence, high conflict or inadequate parenting are unique, and the statutory language would need to specifically address these needs, the policy options for incorporating a reference to violence, high conflict and inadequate parenting are similar.
First, the criteria for parenting orders would have to include a reference to violence, high conflict and inadequate parenting. This could be done either as part of a general list of statutory factors setting out the best interests of the child or as specific factors or limitations when allocating specific aspects of parenting responsibility. Second, and as discussed in the section on Option One, the Divorce Act could include specific provisions regarding the conditions of access in the context of violence, high conflict and inadequate parenting. Third, and as also discussed in the section on Option One, the Divorce Act could include specific provisions addressing the relevance of violence for the purposes of parenting plans and divorce-related services.
Criteria for Parenting Orders
References to violence, high conflict and inadequate parenting could be included in the Divorce Act either as a part of a general list of statutory factors setting out the best interests of the child or as specific factors for specific parenting orders.
General List of Statutory Factors
In the first approach, references to violence, high conflict and inadequate parenting could each be incorporated into a statutory list of the factors to be taken into account in determining the best interests of the child. This general statutory list of factors would be taken into account by the court in allocating parenting responsibility within any and all parenting orders.271
- Violence
A number of jurisdictions have included violence and abuse as factors to be taken into account in determining the best interests of the child.272 As discussed above, the Australian Family Law Act, for example includes the following as factors:
The Maine legislation similarly provides that in making an award of parental rights and responsibilities, the court shall consider the best interests of the child, which include:
The Divorce Act could be reformed to include similar references to violence within the general definition of the best interests of the child.
- High Conflict
The unique situations of high conflict families might be taken into account in a general list of factors. Although there is no statutory precedent for including a reference to high conflict within the general definition of the best interests of the child, the Divorce Act could include a general statement that a child’s best interests are not served by exposure to high parental conflict.
- Inadequate Parenting
Again, although there is no statutory precedent for including a reference to inadequate parenting within the text on the best interests of the child,275 the Divorce Act could include the problems associated with inadequate parenting as a factor to be taken into account when determining the best interests of the child. It could include, as a general statement of principle, that a child’s best interests are not served by exposing children to inadequate parenting. Borrowing from the Washington Parenting Act, inadequate parenting could be more specifically defined to include, for example:
- (a) neglect or substantial non-performance of parenting functions;
- (b) long-term emotional or physical impairment which interferes with the performance of parenting functions; and
- (c) a long-term impairment resulting from substance abuse that interferes with the performance of parenting functions.276
Specific Factors for Specific Orders
A second approach would be to include references to violence, high conflict and inadequate parenting with the specific factors that would need to be taken into account in the allocation of particular aspects of parenting responsibility within particular kinds of parenting orders.
- Violence
Violence could be included as a specific factor to take into account in allocating specific aspects of parenting responsibility and awarding specific types of parenting orders. It could be specified as a factor that the court shall take into account in allocating a child’s residential time (within residence and contact orders, residential-schedule orders or allocated parental responsibility orders) and in the allocation of decision-making authority (within specific-issues and prohibited-steps order, decision-making authority orders, or allocated parental responsibility orders).
In terms of residential time, the Divorce Act could include a presumption that residence or contact will not be ordered in favour of a perpetrator of family violence. Or it could provide that a parent’s residential time shall be limited. The Washington Parenting Act, for example, provides that a parent’s residential time with a child shall be limited if it is found that a parent has physically, sexually or emotionally abused a child, or has a history of acts of domestic violence, or an assault or sexual assault causing grievous bodily harm, or fear of such harm.277 Or the Divorce Act could provide that a court shall only order residence or contact if it is in the best interests of the child, and adequate protection can be made for the child and the parent.278 Or, the Act could simply provide that a finding of domestic violence could result in a reduction of residential time. Each of these options differs in the degree of protection provided, and the extent to which the statutory framework assumes that parenting time should or could be restricted in light of a finding of violence.
A similar range of options is available regarding the allocation of decision-making authority. The Act could establish a presumption against the allocation of decision-making authority to a perpetrator of violence. Or it could establish a presumption against shared decision-making. The Washington Act, for example, provides that a court shall not require mutual decision-making if it is found that a parent has physically, sexually or emotionally abused a child, or has a history of acts of domestic violence, or an assault or sexual assault causing grievous bodily harm, or fear of such harm.279 Or the Divorce Act could provide that a court shall consider violence in the allocation of decision-making authority, that the court may limit the allocation of decision-making authority to a parent who has committed family violence or both. Again, the options differ in the degree of protection considered appropriate, and the extent to which the statutory framework is prepared to assume that decision-making authority should, or could, be restricted in light of a finding of violence.
- High Conflict
High conflict could similarly be incorporated as a specific factor to take into account in allocating parenting responsibility within parenting orders.
The range of options for doing so is similar to that for violence. For example, in terms of residence, the Divorce Act could establish a presumption against shared residence in situations of high conflict. Or it could provide that a parent’s residential time with a child be limited in situations of high conflict, including the possibility of restricting contact altogether.
In terms of decision-making authority, the Act could similarly establish a presumption against shared decision-making in situations of high conflict. For example, the Washington Parenting Act provides that a court shall 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."
280 Following this example, the Divorce Act could then be amended to include a provision that stated that a court should not order mutual or shared decision-making when the parent has similarly engaged in an abusive use of conflict. Or a slightly lower threshold could be used, such as not ordering shared decision-making when parents have demonstrated a serious inability to cooperate or communicate.The degree of conflict could also be identified as a factor to be taken into account in allocating decision-making authority. Again, the Washington Parenting Act states that in making an order for mutual decision-making in a parenting plan, the court shall consider whether the parents have a demonstrated ability and desire to cooperate with one another when making decisions regarding the child. The Divorce Act could similarly be reformed to include a demonstrated ability to cooperate as a factor in the allocation of decision-making authority in a parenting order.
- Inadequate Parenting
The Divorce Act could identify inadequate parenting as a factor to taken into account in allocating parenting responsibility within parenting orders. Inadequate parenting could be identified as relevant for an allocation of either residential time or decision-making authority.
In terms of residence, following the Washington regime, the Divorce Act could provide that a parent’s residential time with a child shall be limited if a parent has engaged in the following conduct: (a)
"willful abandonment of children that continues to an extended period of time or substantial refusal to perform parenting functions."
281 It could also give the court discretion to limit the allocation of any aspect of parenting functions in a number of circumstances, including the following:- (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.
Or, the Divorce Act could provide that a parent’s residential time could be restricted.
In terms of decision-making authority, the Act could provide that a court shall not order shared decision-making if a parent has engaged in the same above listed conduct. Or, it could provide that a parent’s decision-making authority could be restricted.
Assessment: General or Specific Factors?
Although any reference to violence, high conflict and inadequate parenting within the Divorce Act would be a substantial improvement, including these issues within the best interests of the child test may not be most effective approach to ensuring that children are protected from harm. The disadvantage of this approach is that it does not specify how violence, high conflict or inadequate parenting should be taken into account. Rather, the question of the particular relevance to be given to these issues in allocating parental responsibility and awarding parenting orders would remain within judicial discretion.
The advantage of the second approach is that it does not simply state that violence, high conflict and inadequate parenting are relevant in the allocation of parenting responsibility but, rather, that it provides more guidance as to how these issues should be taken into account. Regardless of the particular type of parenting order adopted, this approach would have the advantage of specifying the circumstances under which it would appropriate to restrict residence and contact. Specifying in the legislative scheme that residence and contact could, in fact, be restricted, and even prohibited in situations of violence, high conflict and inadequate parenting, would go a long way to advancing the general objectives of protecting children from harm. For example, it would recognize within the statute the possibility of denying contact, rather than simply assuming that it is always in the child’s best interests to have contact with a parent, including a violent, abusive or neglectful one.
The particular ways in which violence, high conflict and inadequate parenting should be taken into account in allocating parenting responsibility should be clearly and specifically articulated. The more guidance that can be given, the more effectively the statutory framework will advance the general objectives of protecting children from harm.
Violence should be relevant in the allocation of residence and contact and decision-making authority. The strongest protection would be provided by stating, as a general presumption or principle, that the child’s best interests are not served by exposure to family violence, and that a violent parent’s residential time, contact and decision-making authority can be limited. The statute should recognize the possibility of denying contact, unless the child and parent can be adequately protected from harm. The statute should also include a list of the protective measures that could be attached to contact.
High conflict should be identified as being detrimental to children. Further, cooperation should not be expected or encouraged in the context of high-conflict families and, as a general rule, shared decision-making authority should not be ordered. The statute should recognize the possibility of restricting decision-making authority in the event of high conflict.
Inadequate parenting should also be recognized as a factor that can limit a parent’s residential time, contact and decision-making authority.
Conditions of Contact
The Divorce Act could also provide that if a contact order was to be made in a case in which family violence or inadequate parenting has occurred, the court must ensure appropriate protective measures for the child and the parent.282 As discussed for Option One, the Act could set out a range of specific protective measures that could be attached to a contact order. For example, the Maine Domestic Relations Act, extensively addresses the conditions of parent-child contact in the context of family violence, authorizing the use of a range of specific protective measures. It allows the court to order, among other things, the exchange of the child in protected settings, mandatory counselling, supervised access, costs for supervised access, and conditions for supervised access if supervision is to be provided by a family member.283
Including a list of the kinds of protective measures that might be appropriate in situations of violence, high conflict or inadequate parenting could promote the educational objective of reform. This list of conditions may help focus the courts’ attention on a range of protective measures that might otherwise not be considered, and encourage the courts to carefully tailor an order to the particular needs of the particular child.
Parenting Plans and Divorce Services
As discussed in Option One, the Divorce Act could also specifically address the relevance of violence, high conflict and inadequate parenting for parenting plans and divorce-related services. If the Act was reformed to include a reference to parenting plans, divorce related services or both, it would be important for the Act to also consider the extent to which the existence of violence, high conflict and inadequate parenting might represent an exception to the general rule of encouraging parents to resolve their disputes themselves through parenting plans, parenting education and mediation.
Modification of Parenting Orders
Currently, section 17(4) of the Divorce Act 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. Most U.S. jurisdictions use a similar standard of modifying a custody order if there is a substantial or material change in circumstances, and the modification is in the best interests of the child.284 There is no compelling reason to change the existing standard. No particular problems have been identified with this standard, and there is considerable advantage to retaining a well established and reasonably predictable standard.
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