FOCUS GROUPS ON FAMILY LAW ISSUES RELATED TO CUSTODY AND ACCESS

MAIN FINDINGS

PARENTING ARRANGEMENTS

Participants were asked to review three models for parenting arrangements following a separation or divorce, and were then asked to choose the arrangement they think should be used.

Approach 1 (Approach currently used in Canada)

The Divorce Act states that the parent who has custody of a child is responsible for that child's care and upbringing.  In the case of a sole custody order, the most common order, the parent with sole custody is responsible for providing the child with a home and making decisions about things like education and health without having to involve the other parent. 

The parent who has access has "visiting rights" and the right to make inquiries and be given information on the child's health, education and welfare.

It is also possible for courts to make joint custody orders but these are the exception.  In this type of arrangement, both parents participate in making decisions regarding the child.  The courts will only grant joint custody orders when parents get along well enough to make these important decisions together.

Approach 2

In the second approach, even after a divorce or separation, each parent would continue to have all the duties, powers, responsibilities and authority that all parents have.  Both parents would share all the rights and responsibilities of raising the children equally, or almost equally.  The child would live with each parent for an equal or near equal amount of time and both parents would have equal authority to make decisions about child related matters.  One parent could not make major decisions about the child without the consent of the other parent.  Courts would be a last resort to resolve disputes that could not be settled by the parents.

Approach 3

In Approach 3, even after a divorce or separation, each parent would continue to have all the duties, powers, responsibilities and authority that all parents have.  However, this would not mean that living arrangements for the child or decision-making authority have to be shared equally between the parents.  Different parental responsibilities would be identified and allocated between the parents in a flexible way.

Parents could share responsibilities equally when it is workable and appropriate to do so.  Parental responsibilities might also be divided in some other way between the parents or given exclusively to one parent if that best meets the needs of the child.  If parents are unable to work out the division of responsibilities together, this would be done by the courts.

In this chapter, we discuss:

GUIDING PRINCIPLES

The main values and beliefs behind the views expressed on parenting arrangements by the groups can be divided into three broad categories:

  1. The well-being of children.

  2. The obligations/responsibilities of parents.

  3. The fairness to both parents.

We elaborate on each of these below.  In relative terms, participants seemed to apply far more weight to the well-being of children and the obligations and responsibilities parents have towards them than they did to fairness to both parents.

The Well-Being of Children

The Obligations/Responsibilities of Parents

Fairness to Both Parents

The exceptions to the following principles would apply in situations where a parent has been shown to be unreliable or unstable.

PREFERENCES FOR PARENTING ARRANGEMENTS

The majority of participants were not comfortable with the status quo-only about one in ten favoured maintaining it while the rest supported making changes on how parenting arrangements are arrived at.

Of those who supported changes, the majority (two-thirds) favoured the parenting arrangement described in Approach 3.  The others were split between Approach 2 and "not sure" which approach would work best.

Importantly, men and women were not different in their choices and the preferred approach.

Approach 3

As we've stated, the majority of participants preferred this approach to parenting arrangements.  It is seen as the approach that best:

Perceived Advantages

This approach explicitly states that both parents have a role to play in their children's lives in terms of:

As such, it is not seen as marginalizing either parent or as suggesting that one parent's contribution to the well-being of children was more or less important in the past or will be in the future.

This approach is seen as treating both parents equally as responsible, mature adults with the best interests of their children at heart.

This is also seen as supporting the principle that children need and are entitled to have both parents in their lives.

Another perceived advantage of Approach 3 is that it does not establish rigid rules for parental roles, thus allowing parents to identify:

Participants felt this approach recognizes that:

Under this approach, arrangements can be changed and renegotiated by parents over time, as either the need or circumstances warrant for the children or the parents.  Of all the parenting approaches, this approach allows for the greatest flexibility for everyone involved.

Approach 3 also places the decision-making power with parents, relying on court intervention only when a dispute cannot be settled.

Children need stability in their day-to-day lives.  They also need roots, a routine and consistency.  This is particularly true when parents separate or divorce.

Approach 3 was felt to allow parents the greatest flexibility in determining how best to achieve this and was seen as the most child-centered approach of the three:

Importantly, this approach was seen to put the "power" and decision-making role in the hands of parents who best know the needs of their children psychologically and physically.

Psychologically, this approach was perceived as "fair" and non-confrontational because:

The period following a separation or divorce is often a very difficult time for people.  It was felt that this approach is:

Some also hypothesized that the "forced" discussion of roles and responsibilities centered on the children would result in better communication between parents, despite the emotional strain of the marital breakdown.

Participants also felt that this would avoid the child being "pulled in one direction or the other" and provide some modicum of peace in children's lives.

Concerns/Reservations with Approach 3

There was one major reservation some participants had about this approach.  This approach assumes that parents can talk to one another and be reasonable immediately or shortly after a separation or divorce.  As participants pointed out, this is often not the case.

Many spontaneously suggested that the availability of third party intervention (e.g., mediation) would have to be a necessary part of Approach 3 to give it the best chance of working.

There were several other concerns mentioned by a few participants:

Approach 2

Most participants did not prefer this option for parenting arrangements.  While many said they felt the idea of "literal equality" was a good one in principle, they did not feel it was practical, workable or reasonable in general, and that certain aspects of it were not in the best interests of children.  In fact, most participants saw this approach as being more about what parents may want (and even that was questioned), than what might be the best circumstances for the child.

Most participants saw a number of the positive aspects of Approach 3 also captured in Approach 2.  Briefly, these were:

Perceived Advantages

Approach 2 explicitly states that parents have an equal role or almost equal role to play in their children's lives because:

As such, it is seen to clearly lay out the ground rules for how parents will interact and that the children will have access to both parents.

Many felt that this comes closest to co-parenting even if parents and children do not live together.

There is a sense among some participants that this approach would result in the least confrontation between parents because:

This approach is seen to be the most equitable financially.  Because custody is 50/50, participants assumed that there would be no child support paid by one parent to the other.  Each parent carries his or her own freight and the child "will not suffer or go without."

Further, a number of participants felt that the elimination of support orders would also eliminate the profit motive in separations and divorces involving children.

This approach is seen to "force" fathers who "have taken off" to shoulder responsibilities for their children.

Concerns/Reservations with Approach 2

Participants raised two significant concerns against Approach 2, both relating to the "literal equality" in living arrangements and decision-making.

Living Arrangements

Most participants focussed on the aspect of "equal or near equal" living arrangements.  Many did not feel this was in the best interests of either the child or the parents.

Participants Concerns Regarding the Child

This particular arrangement was seen to be particularly problematic when younger children are involved.

Participants Concerns Regarding the Parents

Participants felt that parents should be the ones who make the decision about where and with whom the children should live, as in Approach 3.

Decision-Making

Most participants believe that while the decision-making process in Approach 2 is equitable, it is also flawed because it assumes that following a separation or a divorce people can co-parent without conflict.  Importantly, they support the principle (i.e., "that's the way it should be") but reject the workability of it:

This type of environment is also not seen to be in the best interests of the child.

Some participants also argued that "equal" time is not necessarily the best thing for either the children or the parents and that as a parent "what one wants is 'enough' time so that one can develop a relationship."

This approach is not seen to have the flexibility of Approach 3 in a number of important respects. It is seen to take away decision-making rights from parents as well as their ability to make decisions in the best interests of their children:

Some participants felt that if both parents cannot equally hold up their ends under this approach, the children will suffer.

Quite a few participants felt that both relationships and situations change over time and any arrangement for child-rearing needs to allow for that.  This is also one of the concerns participants have with this Approach-it does not appear to have any practical mechanism in place to deal with "change" or "unusual situations."

On an emotional level, some participants felt that it would be just as much of a problem to force responsibilities on some parents as it would be to take them away completely.  So, while it may be in the best interests of children to have both parents actively involved in their lives, forcing this situation upon a parent who cannot cope or does not want to share the responsibility equally can potentially create a volatile situation.

Approach 1

Only a small minority, about one in ten, favoured maintaining the status quo.  These were men and women who were separated or divorced and felt this approach had worked best in their circumstances.  There were also a few participants who chose this option because it included joint custody.

Perceived Advantages

While the majority of participants did not feel this is an appropriate approach in general, they did see some circumstances in which one parent needs to have both physical and decision-making responsibility for children.  These are:

In cases where there has been domestic violence or abuse or where there is a problem with some form of addiction, one parent needs to be looking after the interests of the children.

Another perceived advantage of this approach is that it clearly spells out the roles and responsibilities for each parent.  The parent with custody is responsible for all aspects of the children's lives and the other is granted visitation rights (the right to see the children but not to be involved with them on a day-to-day basis or involved in any decisions, major or otherwise).  In this regard, it was seen by some to be less confrontational than either Approach 2 or 3 because the division of responsibilities and rights of parents were clearly spelled out and no "consultation" is required.

Also, a few participants who chose this option felt that there would be less chance of ongoing litigation because of the cost associated with getting changes made to the arrangement.

Because children live full-time with one parent, this parenting arrangement was seen as providing the children with a stable environment.

Concerns/Reservations with Approach 1

Notably, the views of men and women were very similar on the shortcomings and perceived problems with this approach.  It was seen by most as neither in the best interests of the child nor the parents and as contradicting most, if not all, the guiding principles that participants expressed about the well-being of children and the obligations and responsibilities of parents.  Psychologically, it is seen as adding undue stress to what are already strained circumstances in the breakdown of marital relationships.

Participants also expressed the view that while the other two approaches seemed to be about adult separation or divorce, this approach was seen to "force children to divorce their parents."

Many participants felt that Approach 1 should be the approach of last resort, used only in circumstances outlined previously and definitely not as the starting point for determining parenting arrangements.

The major concerns centred on the perception that this approach sends the wrong message about what are and should be the responsibilities of both parents to their children and the role each has a right to play in their children's lives:

In effect, this approach is seen as marginalizing parents' contributions to their children and as judging one parent less adequate and less necessary to the well-being of the child.  As quite a few pointed out, this is usually fathers.

This approach leaves one parent, usually the father, "powerless."

The role of the "access" parent is thus perceived to be that of a "babysitter and a wallet."

Participants also felt that this approach marginalized or diminished the importance of the role that both parents have to play in the lives of their children:

The burden of responsibility ends up on the shoulders of the custodial parent, often the mother, who has no choice but to accept all parental duties.

It does not promote co-operation between parents, but rather creates a situation for either a power struggle between the two or an abdication of responsibilities on the part of one of the parents:

It does not have any mechanism for dispute resolution other than to go through a lengthy, costly and emotional court battle.  In the end, participants felt that both the children and the parents suffer and the only benefit is to the legal system.

This approach was also considered to be adversarial; split along gender lines.  The perception of both men and women was that on-going assumptions are:

There were some participants who also pointed out that just because access parents only see their children every second weekend is not a reason to exclude them from decisions concerning their children.

In this approach, most participants agreed that one parent is a "winner"-the one with custody-and the other is a "loser" or at least wronged.  In addition, most participants felt that children are the ones who suffer the biggest loss of all:

Notably though, some participants felt that no one is a "winner" in this approach-the custodial parent, most often the mother, is also often a "loser" under this approach:


TERMINOLOGY USED TO DESCRIBE PARENTING ARRANGEMENTS

During the course of the discussion of parenting arrangements, various terms, and their meaning in the context of the different parenting approaches, were discussed.  These were: 

For the last three, we also discussed which of the parenting arrangement approaches each term best exemplified.

SOLE CUSTODY AND ACCESS

As  discussed in the previous section on parenting arrangements, Approach 1 (the status quo) uses these two terms to delineate parental rights and responsibilities.  For most participants, these terms were negative as applied under the law, creating a situation where one parent has more or too much power over the other parent.

Sole Custody

This was seen as clearly stating that one parent has all the rights and responsibilities, usually the mother.

This term was also seen as relieving one parent, usually the father, of most of his responsibilities while leaving the other parent with no choice but to accept all parental duties.

Access

This is the time the non-custodial parent, usually the father, is allowed by the custodial parent to visit with his children.

JOINT CUSTODY

Most participants felt this was a positive phrase, embodying the following:

While equal access to the children meant 50/50 living arrangements for some participants, it did not necessarily mean that kind of equal split for most participants.  Some participants felt this approach would allow parents to be with their children on a more frequent and more regular basis even if the children did not live with them.

SHARED PARENTING

The majority of participants considered shared parenting to be a positive phrase because it implied the involvement of both parents in the lives of their children.

Most participants felt the term shared parenting described the parenting arrangements in both Approach 2 and 3, whereas some felt it best fit with Approach 2.  There were also a few (mostly women) who felt it applied to all three approaches.

In contrast, most participants stated that the only approach it does not fit is Approach 1-simply put, they felt there is only one parent looking after the children and, thus, there is no sharing of responsibilities for the children.

PARENTAL RESPONSIBILITY

The term parental responsibility was seen to be neutral.  With only a few exceptions, the majority said this applied to all three approaches:

PARENTAL AUTHORITY

Parental authority evoked the most negative reactions of the three phrases participants discussed in connection with the parenting arrangements.  The main reason is that it is most closely associated with Approach 1.

Most participants viewed the term as meaning one parent's authority over the other and as referring to one parent's right to make decisions without consulting or considering the wishes of the other parent (e.g., the parent who has the final word).

Some participants also felt the term applied to all three models because there is authority in all three of them, the difference being who has the authority in each case (e.g., is it one parent exclusively or do both parents have it?).

A few participants did not seem to connect the term with parenting arrangements.  To them parental authority was about the authority a parent has over a child.