Shared Parenting: A Cautionary Note

Prof. Martha Shaffer

From the Spring/Summer 2006 issue of Nexus.

For the past 15 years or so, a wave of custody law reform has been sweeping across many western nations. These reforms tend to be characterized by three main themes: 1) they abolish the language of "custody" and "access"; 2) they move in the direction of "shared parenting" by emphasizing the continuation of parental responsibilities after marriage breakdown; and 3) they encourage reliance on alternative dispute resolution processes. These reforms have been premised, in part, on the belief that they would reduce conflict and encourage cooperative post-separation parenting. Proponents of the reforms contend that "custody" and "access" are outmoded terms with proprietary or criminal law connotations, and that awards giving one parent "custody" and the other "access" promote an adversarial, "winner takes all" mentality. According to reform advocates, abolishing these concepts in favour of a notion of "parental responsibilities" would send an important signal that both parents remain "full" parents after separation, which in turn would allow both parents to remain actively involved in their children's lives and to create arrangements tailored to their children's needs. These reforms were also, however, supported - and in some cases instigated - by fathers' rights organizations, which argued that custody law was biased against men. In their view, this bias could be redressed by safeguarding the father/child relationship by legislatively enshrining a presumption in favour of "joint custody" or, to use the new terminology, "shared parenting".

Canada has not been immune from this reform agenda. After fathers' rights groups complained of bias in the family law system during hearings on the federal child support guidelines in 1996 and 1997, the federal government embarked on a process of custody law reform. After a lengthy reform process, the Liberal government, led by Prime Minister Chretien, introduced Bill C-22 in 2002. Consistent with the general law reform trend, Bill C-22 would have amended the custody provisions of the Divorce Act by replacing the language of "custody" and "access" with the notion of parental responsibility. Under the proposed regime, courts would no longer have made orders for custody or access, but would instead have made "parenting orders" allocating "parenting time" and decision-making authority between the parents. However, Bill C-22 died on the order paper when Parliament adjourned in 2003. Despite some talk of re-introducing the Bill, for better or worse Bill C-22 has been left to languish in obscurity.

Significantly, Bill C-22 did not contain a presumption of shared parenting, causing it to be a source of disappointment for some fathers' rights groups. The Bill's failure to enshrine shared parenting was also the focus of attack by members of the Canadian Alliance and the Progressive Conservatives who voiced strong opposition to the Bill.

Fast forward to 2006. The custody and access provisions of the Divorce Act have still not been amended. Now, though, there is a Conservative government in power. Some of the MPs who opposed Bill C-22 for failing to endorse shared parenting now sit as Conservative MPs. In addition, the Conservative Party as a whole indicated its commitment to "make all the necessary changes to the Divorce Act" to being about shared parenting in its first Declaration of Policy following the merger between the Canadian Alliance and the Progressive Conservatives.

At the moment, custody law reform is not one of the Harper government's top five priorities. In fact, given the tenuous minority the Conservatives have in the House of Commons and the fact that custody reform is also highly contentious, Harper may decide to steer clear of custody reform all together. If, however, Harper decides to tackle the issue of child custody, it seems clear that he will move in the direction of shared parenting.

It is not entirely clear what the Conservatives mean by shared parenting, as shared parenting can mean many things, from a rhetorical commitment that both parents should continue to have a meaningful role in their children's lives post-separation, to a legal presumption that children should spend equal time with each parent following marriage breakdown. However, many of the statements made during the debates surrounding Bill C-22 suggest that the Conservatives favour a strong version of shared parenting, which would require courts to order parents to share physical custody of their children on a 50/50 basis unless there was a compelling reason not to do so. Conservative Party House Leader, Jay Hill, a long-time proponent of shared parenting, stated in an interview earlier this year that "it should be the right of a child to equal access to both parents" and suggested that he and other MPs would push to get shared parenting onto the national agenda.

At first glance, shared parenting seems like a great idea. After all, it seems fair and just that both parents should continue to have a meaningful relationship with their children after marriage breakdown, since divorce, while severing the relationship between the spouses, does not terminate the relationship between parent and child. Moreover, the psychological research on children's adjustment to marriage breakdown indicates that children who continue to have regular contact with both parents tend to fare better than children who do not. What could be wrong with a legal regime that entitles both parents to continue to parent their children after divorce and that allows children to benefit from the continued involvement of both parents in their lives?

However, before Canada jumps onto the shared parenting bandwagon, it would be wise to look more closely at the psychological literature on shared parenting and at the experiences of other jurisdictions that have already amended their custody laws. Assessing the psychological literature on post-divorce parenting is not an easy task because of the use in different studies of various samples and methodologies. Nonetheless, the literature does identify certain factors that tend to improve children's post-divorce adjustment and other factors that tend to lead to poor post-divorce outcomes. Studies consistently show that children are more negatively affected by divorce where they are exposed to on-going parental conflict, where the divorce leads to economic hardship and lack of adequate income, and where the functioning of the children's primary parent is adversely affected.

While most studies show that children benefit from regular contact with both parents after marriage breakdown, they do not establish that children benefit from a particular pattern or frequency of contact. In particular, they do not establish that children in "joint custody" or shared parenting arrangements fare any better than children who live primarily with one parent but who have regular contact with the other. Finally, the studies that have been conducted on families engaged in 50/50 shared parenting - though few in number - suggest that parents who manage successful shared parenting arrangements look very different from the vast majority of family law litigants. Of particular note, these families tend to be very low conflict, they tend to be higher income (perhaps related to the need to provide two households equipped to accommodate children), the mothers tend to be in the paid labour force, and the fathers tend to have flexible employment arrangements or to have reduced their employment hours to allow them to take on increased child related responsibilities.

What this research suggests is that 50/50 shared parenting may not be workable for many families and that the benefits for children of continued parental involvement can be achieved through many other post-divorce parenting arrangements. It also suggests that no single parenting arrangement works best for all children and their families.

The experiences of jurisdictions that have amended their custody laws to encourage shared parental responsibility also suggest caution before embracing a shared parenting agenda. In both Australia and Washington State, researchers found that contrary to reformers' predictions, abolishing the language of "custody" and "access" had not reduced conflict but had in certain ways increased it. In both jurisdictions, the move towards shared parental responsibility - that is shared decision making power over the child - was cited as a reason for this increase. In addition, the researchers in both jurisdictions found that the people who were most at risk of experiencing increased conflict were women fleeing abusive relationships and their children. The researchers concluded that the concept of shared parental responsibility was effectively giving abusive men legal opportunities for harassment and control and was resulting in agreements and court orders that were putting children at risk.

The impact of custody law reform in these jurisdictions tells a cautionary tale about the ability of linguistic change to reduce conflict and about the prospects for shared parenting legislation to promote children's best interests. If laws promoting shared parental decision-making increase conflict, it is reasonable to expect that laws mandating 50/50 shared parenting will have a similar, if not more pronounced effect. Coupled with the finding that parental conflict jeopardizes children's post-divorce adjustment, the Australia and Washington State experience should raise serious doubt as to whether shared parenting is a reform we in Canada should embrace.