The Shared Parenting Bill

By Stuart Birks

Centre for Public Policy Evaluation

Massey University, Palmerston North

Paper for the Public Health Association Conference

Palmerston North, 24-26 July 2000

Abstract

The Shared Parenting Bill first surfaced on 17 February 2000. It raised the profile of post-separation parenting and, in particular, the current approach to non-custodial parents.

This paper looks at the early debate, focusing on the government position and associated briefing papers.

It raises issues of the nature of the family and the implications of alternative policy approaches. It also illustrates identified problems with the quality of policy advice, which has received attention from the State Services Commission.

Contact details

Stuart Birks

Centre for Public Policy Evaluation

Massey University

Palmerston North

Phone: 06-350-5799 X2660

Fax: 06-350-5660

Email: K.S.Birks@massey.ac.nz

Introduction

The Shared Parenting Bill was a private member's bill by Muriel Newman, ACT MP. It is a good example to study because it is relatively self-contained, being first presented on 17^th February 2000 and defeated at its first reading on 10^th May. It addressed the issue of care for children when parents are living apart from each other. The bill aimed to introduce a rebuttable presumption of 50-50 shared custody, in place of the prevailing approach, which emphasizes sole custody.

The Parliamentary debate on the bill, being the first reading, was less a debate on the content of the bill than a debate on whether to even consider the content of the bill by allowing it to progress to the select committee stage. It might be thought appropriate that reasons not to proceed should therefore be well-founded. In this instance the reasons presented were dubious.[1]

The text of the bill is included in Appendix I of this chapter. There was one ministerial briefing paper that received any publicity, see Appendix II for extracts. Papers were also prepared by the Ministry of Social Policy and the Labour Research Office, but they offered little extra of substance. The Ministry of Women's Affairs paper was presented as a memorandum, but was referred to as a briefing paper in a government press release by Laila Harré, Minister of Women's Affairs, dated March 21 (see Appendix III).

As the purpose of this chapter is to consider the quality of policy advice, I shall focus on the government stance, considering the briefing paper and government press releases rather than on the bill itself.

As an initial remark, it is notable that the briefing paper was produced by the Ministry of Women's Affairs (MWA), although Laila Harré is also Minister of Youth Affairs. There has been no mention of papers from the Ministries of Youth Affairs, Justice or Courts, or the Human Rights Commission, or the Law Commission, or the Office of the Commissioner for Children. The MWA paper is open about its purpose, namely to "provide advice on the implications of the Shared Parenting Bill for outcomes for women".  The footer on each page of the paper is, "Making a Difference for Women in Aeotearoa New Zealand". The Ministry describes its role on its web page: "The Ministry provides gender-specific policy advice to the Government to improve women's lives and achieve recognition of women's contribution in society".[2] The briefing paper claims to "scope other policy approaches", but there is little sign of this.

There are omissions in the consideration of implications. For the memorandum to give a balanced assessment it would have to include:

         i.            Consideration of the scale of the problem in terms of the number of families affected and the implications for the structure of society and associated social problems;

       ii.            A broader view of rights than just article 3 of UNCROC;

      iii.            Mention of "the shadow of the law" and more of the various published criticisms of the current operation of the Family Court;

     iv.            Broader and more searching coverage of the literature.

To address these in turn:

i.        The scale of the problem

The Inland Revenue Department (IRD) estimates that, at 31 August 1999, child support registrations involved approximately 300,000 children.[3] Statistics New Zealand data on the under 19 population at that time give a total of less than 1,200,000. In other words, from these figures over a quarter of New Zealand children are living apart from one of their natural parents. The IRD also expect the number of paying and custodial parents on its child support customer base (and hence the number of children affected) to grow over the next eleven years.[4]

An assessment of policies that impact on such a large section of the population really needs to give some consideration to the broader implications in terms of the nature of society and families. A change in rules will change behaviour. The implications could be significant and it should be a major concern that policy advice to government fails to acknowledge this.[5] Not only is it a concern, but we should also be surprised at its omission given that behavioural factors are considered significant for much public policy  (public health messages, user charges and cost containment in health, deterring crime, benefits and willingness to work, to name only a few). It might be considered reasonable to expect at least rudimentary "social impact reports" to be made, given the culture we have of environmental impact reports and gender analysis of policies, for example. Instead, the focus was solely on how individual cases would be handled.

ii.      Rights

The briefing paper is extremely selective, mentioning only Article 3 of the United Nations Convention on the Rights of the Child (UNCROC), saying that, "the interests of the child should be the primary consideration in policy and administrative practices". Other Articles are also relevant. Hence, to take some clear examples:

·        Article 5 says that: "States Parties shall respect the responsibilities, rights and duties of parents … to provide … appropriate direction and guidance".

·        In Article 7 we see that: "The child shall … have …, as far as possible, the right to know and be cared for by his or her parents".

·        Article 9.1 states that: "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child." This could possibly be interpreted to mean that interim sole-custody arrangements are questionable, and that alternatives to shared custody should only be considered when they can be shown to be superior according to a "best interest of the child" criterion. If this latter is a valid interpretation, then clause 5 of the Shared Parenting Bill was merely writing this into legislation.[6]

·        Article 9.3 is also relevant: "States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests." In other words, the state should only fail to support the maintenance of a child's personal relations and direct contact with a parent on a regular basis if it is demonstrably contrary to a child's best interest.[7]

·        Article 14.2 says: "States parties shall respect the rights and duties of parents and, if applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child." The MWA paper states clearly that this does not occur at present, stating on page one that: "in practice the rights of guardianship are exercised by the parent who is the primary caregiver".

·        Article 18.1 makes the State's obligation to support both parents explicit: "States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern." It also identifies parental responsibilities as being focused on the best interest of the child. This is important in understanding the meaning of parental rights, which are a requirement to enable parents to meet their responsibilities.

·        Article 18.2 requires the State to develop appropriate institutions, which would include the Family Court: "For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of the child."

·        Article 19.1, referring to mental violence, could be considered to apply to emotional abuse in the form of parental alienation[8]: "States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child." The bill expressly mentions parental alienation in clause 8(b). Article 19.2 mentions provision for intervention in such cases, which may have been partially addressed in clause 8 of the bill.

There are other internationally specified rights which merit consideration. Some of these are listed in a 1998 document from the Human Rights Commission[9]:

"Article 16(1) of the Universal Declaration of Human Rights provides that men and women of full age have the right to marry and found a family; and relevantly they are entitled to equal rights as to marriage, during marriage and at its dissolution. Article 16(3) provides that the family is the natural and fundamental unit of society and is entitled to protection by society and the state."

"International Covenant on Civil and Political Rights ... Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence."

"Convention on the Elimination of Discrimination Against Women [CEDAW] ... Article 16 provides that States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: Article 16(f) ensures the same rights and responsibilities during marriage and at its dissolution."

Article 5 of CEDAW is also relevant:

 States Parties shall take all appropriate measures:

To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

(my emphasis)

A discussion of parental rights in the United States in Hubin (1999) makes a crucial point. Echoing UNCROC Article 18.1:

"... parental rights are fiduciary rights. Parents have the legal right to make certain decisions concerning their minor children in the best interests of the children ... even when the parent is acting within the scope of his or her rights and in a situation in which these rights are not overridden, the parents' choices are to be guided by consideration of the best interests of the children."

Later in the paper he says:

"The phrase "award custody" constitutes a strange twisting of reality in the context of divorce, dissolution and most other conflicts over custody between natural and adoptive parents. Such parents typically appear before the court at the outset each with full parental rights. No one is awarded rights, one parent is deprived of rights ... the temporary "awarding" of custody is really the suspension (temporary deprivation) of rights ... The procedures for "awarding" custody pendente lite do not require evidence, or even an assertion, that the person whose parental rights are abridged has abused, or is likely to abuse, his or her parental rights."

It is worth noting that the concept of "family" in these international documents is based on biological ties, whereas official statistics consider a family as a subset of households. The data therefore require people to be living under the same roof, hence "sole parent family", and custodial parents in new, live-in relationships are considered to be in "two parent families".

iii.                "Shadow of the Law"

In section 3 of Birks (1999a), I discuss the impact of "fallback positions" on the court counselling process. A technical concept which encompasses such effects is "the shadow of the law". The concept is important not only because it indicates how legal decisions may influence outcomes by other processes, thus allowing a wider and less formal application of the law, but also because the existence of legal avenues may in fact restrict the range of possible outcomes.

For the latter effect, consider when the court makes rulings on custody and access. Where there is a belief that conflict between parents is incompatible with significant parenting involvement by both parents, courts will tend to favour sole custody with limited or no contact by the other parent. In other words, the adversarial nature of legal processes can bias legal decisions away from shared custody. Mediated settlements could result in a more co-operative outcome, except that parties to mediation are acting "in the shadow of" a law which favours a winner-take-all outcome. The one most likely to win a legal case has limited incentive to compromise in mediation, and the one most likely to lose is under great pressure to make concessions.[10]

iv.                Literature Coverage

Few documents were cited. Some contradicted the report. For example the paper claims that "only 5% of custody applications to the Family Court result in contested hearings". The paper cites undated notes, and quotes paragraph 926 of Morris (1999). Morris, in a footnote to the paragraph, states that, "there is a lack of comprehensive data on this matter", and reports on a study which found that, "defended hearings were held in 12 percent of Guardianship cases and in 8 percent of the CYPF Act cases". Morris is reporting on the Women's Access to Justice project, which has been criticised for its methodology and the quality of its information (see Birks, 1998a, 1998b). Whatever the figure, the above-mentioned phenomenon of the shadow of the law would indicate that judicial decisions have a far wider significance and should not be so readily dismissed. The 5% figure could be interpreted to suggest that most cases are satisfactorily resolved without requiring a hearing. This is the suggestion in the briefing paper. An alternative interpretation could be that relationships between children and their parents are being limited or severed without even a hearing of the evidence. The briefing paper is weak on identifying the context for and underlying assumptions of its analysis.

In other cases, contradictory information is omitted. For example, reference is made to Section 20A of the Guardianship Act, which provides penalties for obstruction of access. In Butterworths (1995, p.506) Judge Boshier is reported as doubting whether there was power to punish the deliberate obstruction of enforcement of an access order.

Although the problem of alienation has been mentioned in the New Zealand literature (Blaikie, 1994, Birks, 1998c) and is raised in the bill, this matter is not addressed in the briefing paper.

There is some mention of overseas legislation, mainly indicating that the writer was unable to find similar legislation elsewhere. I made a short internet search and found that a presumption of shared physical custody can be found in the state legislation for Idaho and New Mexico. Another piece about a California judge shows that many provisions in the bill were already written into law in California.[11]

Contradictions

There are also contradictions in the paper. Perhaps the most glaring is the claim on page 4 that "current law … confers generally irrevocable guardianship rights at the birth of the child". This contrasts with the statement on page 1 that, "the rights of guardianship are exercised by the parent who is the primary caregiver". In any event the former claim is incorrect if the father is neither married to nor living with the mother at the time of birth.

The use of the term "primary caregiver" is itself problematic given past New Zealand literature on the subject. It involves a narrow view of parenting and of children's needs. This is discussed, with reference to relevant literature, in Birks (1999a). The result is to understate the importance of parents, the nature of their contribution, and the circumstances required for them to adequately fulfill their parental responsibilities.

It should be noted that the Ministry's briefing paper to the incoming Minister[12] included the assertion that, "Economic independence is the most important issue for women because it is the necessary condition for social and economic well-being". This places a low value on families. It might indicate why the Ministry sees no problem with a situation as stated in the memorandum where the rights of guardianship are exercised not by both parents, but by the primary caregiver. We could question whether that is in the best interests of the children, however.

The paper criticized the bill on the grounds that it would, "restrict the overriding discretion of the Court" (p.4). It does this despite also referring to Morris (1999), a report based on the unquestioned starting assumption that women receive unfair treatment under the law. One report is trying to shape legal behaviour, the other is suggesting that there should be no interference. The reasoning is inconsistent, and suggestive of a piecemeal approach, simply using whatever arguments support the preferred position of the time.

Steve Maharey, Minister for Social Welfare, also objected to restrictions on judges in a Government press release on the bill dated 22 March 2000 (see Appendix IV). He asserts that: In attempting to legislate preferred or favoured custody arrangements the bill places the rights of parents above those of children and as such it is inconsistent with other family law statutes. 

He is incorrect on three counts. First, clause 5 of the bill specified best interests of the child as the deciding criterion for custody. Second, if Hubin's point above applies in New Zealand, then the rights of parents involve an associated responsibility to act in the best interests of children.[13] Third, it is not clear that the Child Support Act, the Domestic Violence Act, or the Matrimonial Property Act have as their prime objectives the best interests of the child, the welfare of the child, or the rights of the child.

It is to be wondered what stance would be observed in a briefing paper from the Ministry of Justice, given that Minister's attempts to influence sentencing patterns. In a Newsroom report of, 23 March 2000, reporter Peter Fowler states, "The Justice Minister, Phil Goff, is looking at passing a new law next year, which will set down guidelines for judges to follow when imposing sentences and non-parole periods.”

The MWA objection to restrictions on judges calls into question the amount of discretion appropriate for the Court given lawyers' lack of specialist training in issues of child development, family structure and so on. Chief Justice Sian Elias pointed out recently that, "We have all of us had experience of agencies who, with the best possible motives, have genuinely pursued their vision of the appropriate ends of the legislation but have in doing so failed to hear the other point of view".[14]

The reasoning therefore appears to be inconsistent. The issue is a telling one, however. There has never been a public debate on what is meant by the best interests of the child or the welfare of the child. This has been left to the Family Court to determine on its own and without scrutiny. As Judge Boshier has said, "… the Family Court … unfortunately labours under the perception that it operates in secret".[15]

While this secrecy can limit discussion of individual cases, it should not preclude public debate on broader principles. In fact such debate has been called for.[16] Nevertheless offers to participate in debate have been declined or ignored.[17]

The Minister of Social Welfare states in his press release (see Appendix IV) that, "the Government does not consider that the one size fits all solution promoted by Mrs Newman through this bill is appropriate". It is hard to see how the bill can be interpreted in this way, given the options presented in clause 5.

The government stance on the bill had the effect of preventing debate. The press release in Appendix IV indicates that there may be debate in future, but the standard of reasoning used in this case does not suggest that the future debate will be solidly based.

Conclusion

To summarise, the debate on the bill was not one on the bill itself, but whether to allow the bill to proceed past the first reading. In other words, the debate was on the question whether to even debate the bill. There was remarkable misinformation and lack of information about the bill. Ministry research input into the political process was restricted primarily to one briefing paper. That was expressly to consider the impact on women, despite the claims by several participants that the overriding concern was the best interests of children. Government press releases also misrepresented the bill. It is not clear whether the misinformation influenced the politicians, or the politicians actively promoted the misinformation. In any event, it is clear that, as the State Services project recognizes, there are problems with the quality of policy advice.[18]

There also appear to be inconsistencies in the government approach to the judiciary. In the case of the bill, it is considered inappropriate to constrain judges, whereas in other areas guidance is sought.

Perhaps of even greater concern is that the rights identified in this paper suggest that current practice in the Family Court may be contrary to the terms of various international conventions. Is it appropriate to simply ignore this, when arguments based on rights were used to justify the government stance on the bill?

Most surprising, however, is the lack of any consideration of the social impact of current legislation or the changes proposed in the bill. This omission, being notable also with the Relationships Property Bill, may be a common characteristic of lawmaking in New Zealand. As a result, both lawmaking and implementation may well be very poorly informed.

Appendix I

Shared Parenting Bill

Member’s Bill

____________

Explanatory note

This purpose of this Bill is to significantly improve the welfare of children whose parents separate or divorce.

Children inevitably suffer when their parents elect to live apart.  The continued absence of one parent is a major source of anguish in a child’s life which can be exacerbated by the competition between parents caused by custody and access inequalities.

Currently, the most frequent outcome for families when parents separate, is physical sole custody, whereby the children spend the majority of their time with one parent. The parent who gets sole physical custody effectively gains control of the children and hence commands a strong position in negotiations with the non-custodial parent for their relationship with the children..

Shared Parenting, as described in this Bill, has been highly successful in other western countries over the past two decades.  It has been shown to improve the welfare of children, reduce arguing between parents, and improve cohesion of the two parent family unit.

Under Shared Parenting, the starting point is that both parents are equally important to the children and it is in the best interests of the children to spend equal physical time with each parent.  Parents will be considered “joint custodians”, and neither parent will be given a superior role to the other parent unless it is proven necessary.

The parents (or a judge, if one is involved) will be able to mutually agree to vary custody arrangements from the 50:50 split of time.  Such changes should be the mutual decision of the parents, taking account of the needs of the children.

Unequal sole custody and other custody arrangements will continue to be options, but they will be ranked as lower alternatives.  Alternatives will be considered if for example, one parent fails to cooperate with the other, if one parent tries to alienate the children against the other parent, or if one parent is deemed by a court to be unsuitable.

Government departments, and non-government agencies receiving government funding, will be required to actively promote Shared Parenting. Annual reports will be subject to parliamentary scrutiny to ensure proper compliance.

The use of false allegations by one party against another to win custody will not be tolerated.  Any false allegations that are made knowingly will draw fines, court costs and possible downgrading of custody rights.

Government benefits will continue to be available to separating parents, but WINZ will be required to explore all viable options, such as placing both parents in the work force.  WINZ will be required to consult both parents before a benefit is granted.

Government will be required to publish information describing the uptake and impact of the various custody arrangements.

New Zealand has a long tradition of gender equality, including equal voting rights, equal splitting of matrimonial property, and equality in education and the work force.  Shared Parenting within the family unit is the only realistic long-term public policy option for New Zealand to adopt. 

________________________

Dr Muriel Newman

SHARED PARENTING BILL

____________

CONTENTS

            1            Title                                                  9            Parenting Plan

            2            Commencement                        10            Mutually agreed variations to

            3            Purpose                                              shared parenting

            4            Interpretation                          11            Sole custody consideration

5            Priorities of custody                        12            Promotion of shared parenting

            6            Parental co operation                        13            Court must state reason if it does

            7            Domestic violence                                    not award shared parenting

            8            Penalties for non-co operation14            Publication of information

______________________________________________________

The Parliament of New Zealand enacts as follows:

1. Title – This Act is the Shared Parenting Act 2000.

2. Commencement – This Act comes into force on the day after the date on which it receives  Royal assent.

3. Purpose – The purpose of this Act is to improve the welfare of children whose parents have separated, by bringing greater equality to the role of parents within the family unit by –

(a)          ensuring that minor children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage:

(b)         encouraging parents to share the rights and responsibilities of child rearing to effect this policy:

(c)          assuring parents to the greatest extent practical, an equal role in the physical and legal custody of their children.

4. Interpretation – In this Act, unless the context otherwise requires,-

Shared parenting means joint custody split equally (50:50) between the parents (or other parties)

Joint custody means joint physical and joint legal custody to both parents (or other parties), in such a way as to guarantee the child frequent and ongoing contact with both parents (or other parties)

Legal custody means the decision-making rights, responsibilities, and authority relating to the health, education and welfare of a child

Parental alienation means having the effect of denigrating or degrading a parent (or party) involved in custody issues, to the relevant children in custody

Physical custody means a minor child residing with, or under the care and supervision of a parent (or other party)

Sole custody means one parent (or other party) having physical and legal custody of a minor child.

5. Priorities of custody – Custody must be awarded in the following order of preference, according to the best interests of the child:

(a)            Shared parenting by both parents:

(b)              Joint custody to both parents:

(c)              Sole custody to either parent:

(d)            Equal joint, joint or sole custody to other parties.

6. Parental co-operation – An award of joint custody obligates the parents (or other parties) to exchange information concerning the health, education, and welfare of the minor child, and unless allocated, apportioned, or decreed, the parents or parties must work co-operatively and confer with one another in the exercise of decision-making, responsibilities and authority.

7. Domestic violence –

(1)      In every proceeding where there is a determination by the court that domestic or family violence has occurred, there is a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody or joint physical custody with the perpetrator of domestic or family violence. 

(2)      Despite the provisions in subsection (1), the judge must also take into account what, if any, impact the domestic violence had on the child.

8. Penalties for non-co operation – Any person who frustrates or attempts to frustrate (directly or indirectly) the custody or access of a parent or party, by any means including-

(a)                preventing hand over of the children:

(b)               parental alienation:

(c)                knowingly making false allegations of sexual abuse:

(d)               knowingly making false allegations of domestic violence –

is liable to -

(e)                a fine not exceeding $1000:

(f)                 the costs incurred by the aggrieved parent or party because of the non-co operation:

(g)                in the case of a custodial parent or party, downgrading of joint custody rights to non-custodial status, or the removal of custody rights.

9. Parenting plan – If the court finds both parents are suitable parents it may, at its discretion, require the parents (or other parties) to submit an implementation plan for the custody order, or the parents acting individually or in concert may voluntarily submit a custody implementation plan.

10. Mutually agreed variations to shared parenting – Parents who have been granted shared parenting are free to mutually agree variations to the physical care arrangements as suits their personal and work situations.

11. Sole custody consideration –

(1)   In making an order for sole custody, the court must consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the non-custodial parent. 

(2)  The burden of proof that shared parenting would not be in the best interests of the child is on the parent requesting sole custody.

12. Promotion of shared parenting –

(1)  Every department, Crown entity, and State enterprise within the meaning of:      

(a)          Schedule 1 of the State Sector Act 1988:

(b)         Schedule 4 of the Public Finance Act 1989:

(c)          Schedule 1 of the State Owned Enterprises Act 1986 –

and any organisation or body entering into a contract with a department referred to in paragraph a  for the provision of goods or services –

must actively promote shared parenting as the preferred option where the activities of that department, Crown entity, State enterprise or organisation reflects or influences parental custody arrangements

(2) Every department, Crown entity, State enterprise or organisation to which subsection (1) applies, must include in its annual report, a statement of compliance with the provision of subsection 1

13. Court must state reasons shared parenting not awarded – If a court does not award shared parenting, then the reasons must be explicitly stated in the judgment.

14. Publication of information –

(1) The Department of Courts must include in its annual report the following information:

(a)       the outcomes of all custody court cases for the year:

(b)      the different types of custody awarded:

(c)       the reasons why shared parenting was not awarded:

(d)      the number of custody cases in which accusations of sexual abuse or domestic violence were made:

(e)       the gender of the parents or parties involved for each custody outcome:

(f)        the number of cases in which accusations of sexual abuse or domestic violence were made, which also had custody implications which were not contested in court:

(2) At each national census, the Department of Statistics must ensure information is collected and published on the accumulated number of different custody arrangements in the community (both court awarded and non-court awarded), and the level of total benefits being paid.