Final Federal-Provincial-Territorial Report on Custody and Access and Child Support

Appendix B: Summary of International Evaluations

In 1987, Washington State made significant changes to its divorce and child custody law in the form of the Washington State Parenting Act.  In this legislation, the primary tool used to structure post-separation parenting is the parenting plan.  Even where parents are unable to agree on a parenting plan and court proceedings are necessary, the court order (called a "parenting order") is made in the form of a parenting plan.  The objectives of the parenting plan include providing for the child's physical care, setting out the authority and responsibilities of each parent with respect to the child, minimizing parental conflict, and encouraging parents to resolve their disputes under the parenting plan instead of through the court system.[139]  The parenting plan is the vehicle by which "parenting functions" are allocated between the parents.  These parenting functions include maintaining a loving, stable, consistent and nurturing relationship with the child, attending to the daily needs of the child, attending to the child's education, and providing financial support for the child.[140]

Since the passage of the Washington State Parenting Act in 1987, research has been conducted in an effort to determine the impact of the new act on divorcing families.[141]  The studies indicate that, while there appears to be strong policy support for the goals of the act, particularly among professionals involved in the family law system, it does not appear that the act has had a significant impact on the reality of post-separation parenting.  For the most part, children continue to live with one parent following divorce and it is that parent who exercises control over significant decisions concerning the child.  In general, non-residential parents continue to play a limited role in children's lives, with the "every other weekend" schedule predominating.  Nor do the research results indicate that the act has reduced conflict between divorcing parents.  In fact, in some circumstances the new act may have increased conflict between parents since the mutual decision-making provisions contained in most parenting plans provide a fresh source of conflict for some parents.

The Children Act 1989 came into effect in 1991.[142]

The United Kingdom legislation has replaced the terms "custody" and "access" with the terms "parental responsibility," "residence" and "contact." The changes in terminology were intended to encourage parents to focus on co-operative arrangements for caring for their children and to provide more flexibility in childcare arrangements.

The central feature of the United Kingdom model of post-separation parenting is the notion of parental responsibility.  The act replaces the old custody and access order with four types of orders:

  1. residence orders;
  2. contact orders;
  3. specific issues orders; and
  4. prohibited steps orders.

A residence order defines the person or persons with whom the child is to live.  A contact order requires the person with whom the child lives, or is to live, to allow the child to have contact with another person.  A specific issues order deals with a dispute over a particular aspect of parental responsibility.  A prohibited steps order requires that a particular step not be taken without the approval of the court.

Research indicates that the act has not succeeded in reducing litigation concerning custody and access.  For example, the number of contact orders increased by 117 percent between 1992 and 1996.[143]  Recent statistics obtained from the United Kingdom government suggest that litigation concerning access and contact is not decreasing in the longer term.[144]  For some parents, the reforms appear to have assisted them in arriving at a co-operative parenting arrangement, while for others the act's emphasis on parental responsibility seems to have expanded the range of issues to fight about.

Australia made significant changes to its Family Law Act in 1995 with the passage of the Family Law Reform Act.  The legislative changes were largely modelled on the family law reforms carried out in the United Kingdom in 1989.  The new act was intended to change attitudes by encouraging separating and divorcing parents to focus on their children's interests instead of their own, to remain involved with their children following separation, to share parenting responsibilities, and to resolve custody issues through agreement instead of through litigation.[145]

The Australian act uses terminology similar to that used in the United Kingdom Children Act 1989.  Residence and parental responsibility take the place of custody, and contact replaces access.  The court makes a parenting order in which responsibilities are allocated to the parents according to the best interests of the child.

Two evaluations are available concerning the impact of the changes to the Australian Family Law Act.[146]  Several patterns are suggested by the two Australian studies.  First, the principle of the child's right to contact appears to be given more weight than any other principle under the act including the provisions concerning family violence.  This was not an articulated purpose of the legislation and is clearly an unintended result.  Second, many fathers appear to believe that they have more "rights" under the new legislation and many mothers think they have to agree to more generous contact arrangements and that they cannot relocate (again, neither of these were intended results).  Also, the act has not yet met its objective of decreasing litigation and conflict in family matters.  Although for some parents the new provisions seem to promote settlement by increasing the range of parenting options available, for others involved in high conflict disputes, the new provisions seem to allow for more opportunities to litigate.

The Family Law Committee was particularly interested in the Australian reforms and therefore asked the senior Australian official responsible for the new legislation to meet with the Committee and discuss his experience.  He advised that any change to the legislative framework in family law runs the risk that interest groups and professionals will interpret it in different ways.  In Australia, the words used by the legislature have been given quite opposite meanings by men's groups and women's groups and on many occasions bore little resemblance to the intention of the legislature.  Further interpretations by professionals and judicial officers add to the confusion for those trying to find their way through the family law system.  He indicated that in order for legislative changes to be successful, it is vital to ensure one clear message is articulated and that message must be transmitted appropriately to interested stakeholders over time.  Legal and other professionals are key players in transmitting that message.  It was also pointed out that legislative change will not resolve the problems of high-conflict families and attitudinal changes regarding post-separation parenting will occur only over the long term with appropriate support in the form of services.

The 1970s saw profound upheavals in family law in European countries with a civil law tradition, including France.  The reforms affected all areas of family law, including marriage, divorce and the legal status of children.

With respect to children, the principle of gender equality-enshrined in virtually all statutes-and the growing importance placed on protecting the interests of the child were contributing factors in changing the legal relationship between parents and children.  Fathers and mothers were charged with a veritable trust in relation to their children, as the changes in legal terminology show.  In France in particular, the concept of paternal power was replaced with that of parental authority (Law of July 4, 1970), parental authority being conceived of as a function comprising both rights and duties whose ultimate aim was the interests of the child.

A few years later, in 1984, the Committee of Ministers of the Council of Europe found that in some states, the concept of parental authority no longer reflected social and legal reality, while in others, it ran counter to the predictable development of the law.  The Committee therefore adopted a Recommendation concerning parental responsibilities.[147]  The explanatory document for this Recommendation mentioned that the drafters preferred the phrase parental responsibilities (rather than parental authority) because it more accurately expressed the modern concept according to which parents, on equal footing with each other and their children, were entrusted with a mission of education, legal representation, maintenance, etc.  It was thought that parents exercised powers not under some authority conferred upon them in their own interests, but in order to fulfil duties in the interests of their children.

The sixth principle of the Recommendation reads as follows:

In the case of a dissolution of a marriage or a separation of the parents, the competent authority requested to intervene should rule on the exercise of parental responsibilities.  It should accordingly take any appropriate measures, for example by dividing the exercise of the responsibilities between the two parents or, where the parents consent, by providing that the responsibilities should be exercised jointly.  In taking its decision, the authority should take account of any agreement concluded between the parents provided it is not contrary to the interests of the children.[148]

Despite the fact that the Council of Europe adopted this Recommendation, France did not see fit to modify its legal terminology.  Parental authority remained, and remains today, the phrase used in the French Civil Code.  For its part, Quebec introduced the concept of parental authority into the Civil Code of Quebec in 1977.

In recent years, France has undertaken a significant reform of its family law.  The general orientations of this reform were made public in April 2002 by the French minister of Justice and the minister responsible for the family, children and persons with disabilities.  Parental authority and divorce are the two components of this reform.

The objective pursued by the French government in this reform was stated as follows at a conference on the family held on June 11, 2001:

While seeking to consider more effectively the diversity of family situations, the various components of this reform are conceived as parts of a coherent whole.  The aim is to implement the principles of freedom in the life choices of couples and parents, of equality among children regardless of their parents' circumstances, and of parity between men and women, and of searching for and attaching value to agreements between spouses and parents.[149]

Regarding divorce more particularly, the proposed orientations aim to "humanize and pacify divorce proceedings, in order to provide parents with better support and to create conditions for an organization responsible for the consequences of the parents' separation for the children."[150]

Law No. 2002-305 of March 4, 2002 concerning parental authority has been adopted by the French National Assembly and published in the Journal officiel [Official gazette] [J.O. No. 54 of March 5, 2002, p. 4161].  This law, which was amended during the legislative process, is of immediate application and is therefore now in force in France.

The text of the law is available on the Web site of the Journal officiel at the following address: http://www.legifrance.gouv.fr.

It should be noted that this legislation concerns only the right of parental authority, including the organization of that authority in case of separation or divorce, and certain aspects of child protection (particularly juvenile prostitution and the international abduction of children).  However, the reform of divorce law as such (proceedings, grounds for divorce), is still in the works before the French legislative bodies.  This much awaited reform of divorce law in France should include the abandonment of divorce on the grounds of fault, and the introduction of rules designed to simplify proceedings, with particular emphasis on the importance of family mediation and negotiated agreements.

Readers may consult the major points of this draft reform of divorce law in France on the Web site of the French ministry of Justice, at the following address: http://www.justice.gouv.fr/presse/conf091001.htm

The Exercise of Parental Authority

The new law was adopted following the work of two government commissions that, in recent years, have examined family law reform in general.[151]  The new law is in line with the two most recent reforms (1987 and 1993) that France has introduced in this field.  The laws of 1987 and 1993 had introduced the model of joint exercise of parental authority (as it has existed in Quebec law since 1977).  We can say that the French law of 2002 translates into law all the consequences of the principle of joint parenthood, whether in the united couple or in the separated family.  The new law is based on two major principles, identified by the Dekeuwer-Défossez Commission:

  • Making the rules concerning parental authority uniform.  Whatever the parents' marital status (married or unmarried, united, separated or divorced), a common law of parental authority now applies.  In this regard, French law is thus abandoning the legal concept of distinguishing "legitimate" from "illegitimate" children.  The new legislation no longer distinguishes between separation and divorce in respect of the consequences of marriage breakdown on the exercise of parental authority.  A common law of separation is thus introduced.
  • Making the joint exercise of parental authority widespread, so that the principle of joint parenthood becomes the norm.  The new legislation quite clearly seeks to promote the active participation of fathers in the work of educating their children, even (and perhaps especially) where couples break up.

One remarkable fact is that the new law maintains the concept of parental authority, thus refusing to follow the direction of the European rules that nevertheless advocate the disappearance of the terms "power" and "authority" in favour of the phrase parental responsibility.  The Théry and Dekeuwer-Défossez reports justify maintaining the term authority, emphasizing that it more accurately reflects the inseparable nature of the rights and duties that belong to parents:  "Parents have more than just responsibilities; they also have a 'duty of requirement' in regard to their children, to enable the children to become socialized.  Devaluing this duty would be to weaken the meaning of the parental relationship."[152]  Moreover, "To empower the father and mother, it is not enough to emphasize their responsibility; it is also appropriate to insist on the powers they have to carry out their mission successfully.  There is responsibility because there is authority.  It has been said how important it seemed today to reaffirm that authority, less perhaps in regard to the children or to third parties, than in regard to the parents themselves."[153]

Another innovation is that for the first time, the French Civil Code gives a definition of the concept of parental authority, while up to this point it had merely enumerated the main components of that authority (as the Civil Code of Quebec does).  This definition is based on the ultimate purpose of the authority.  The new article 371-1 of the Code states the following rule:

Parental authority is a set of rights and duties whose aim is the interests of the child.

Until the child reaches the age of majority or becomes independent, it is up to the father and mother to protect the child's safety, health and morality, to ensure the child's education and to allow his or her development, with the respect due to the person of the child.

In sum, we may say that French law confirms that parents, whatever their marital status, jointly exercise the parental authority that is an effect of parentage.  There is only one exception to this principle.  Article 372 of the Civil Code provides that where parentage is established in respect of one of the parents more than one year after the birth or where parentage is judicially declared in respect of the second parent, only the parent whose parentage was already established (usually the mother) shall exercise the authority.  Nevertheless, the parents might agree to joint exercise of the authority, and the court might also impose such a solution in the best interests of the child.

The principle of the joint exercise of parental authority also applies in case of separation or divorce.  Article 373-2 of the French Civil Code provides:

The separation of the parents has no impact on the rules for conferring the exercise of parental authority.

It is only in cases where the interests of the child require it that a judge may order the exclusive exercise of the authority by one parent only (article 373-2-1 C.C.).  The Code then employs the phrase "unilateral exercise of parental authority" (art. 389-2, 2o).  In such cases, the other parent may exercise a "right of visit and accommodation", and this right cannot be refused except for serious reasons.  In other words, French law presumes that it is in the interests of the child that both the child's parents exercise parental authority, whether they are separated or not.

It is interesting to note that the phrase "right of custody" has been removed from the French legislative vocabulary.  It has been replaced with the phrase "exercise of parental authority", rounded out by reference to organization of the "child's mode of residence" (article 373-2-9 C.C.).

Determination of the Child's Mode of Residence (Physical Custody)

Regarding the attribution of what we in Canada call the "right of physical custody" and what French law, as we have seen, describes as the "child's mode of residence", the Civil Code expressly provides (and this is a novelty) for the possibility that the parents may agree on an "alternating residence" solution and on the power for the court to impose such a solution.

Combined with the principle of the joint exercise of parental authority, the mode of alternating residence, where the residence time at the home of each parent is more or less the same, is equivalent to joint custody in Canada.  Regarding the organization of the child's mode of residence (and hence of the custody right in the conventional sense), French law does not contain any legal presumption.  Nonetheless, the new law formally recognizes the possibility of alternating residence for the child in the case of separation or divorce.  By insisting on the importance of parental agreements[154] and mentioning alternating residence in the first place, the new law now seems to favour this mode of post-separation family organization.

However, even if the alternating residence solution is in fact the first that the law cites among the various possibilities of which the judge disposes (art. 373-2-9 C.C.), we cannot conclude from this that any kind of presumption exists.  When the court is called upon to make a decision concerning either the physical presence of the child or the organization of other aspects of the exercise of parental authority, it must take into account a certain number of criteria that allow it to identify more clearly the interests of the child (art. 373-2-11 C.C.).  In this regard, we should point out that the first criterion stated by the Code is "the practice that the parents previously followed." The other criteria are agreements, the feelings expressed by the child, parental aptitude (including the aptitude for recognizing the rights of the other parent), and the findings of any expert assessments or social inquiries.  The new enactment, which is in tune with the International Convention on the Rights of the Child of 1989, insists on the importance of the child's place in any discussions concerning him or her.  For example, the new article 371-1, paragraph 3 expressly provides:  "Parents shall involve the child in any decisions concerning the child, in accordance with his or her age and degree of maturity.".

The Place of the Non-Custodial-Parent

We use the term non-custodial because it refers to a situation that is well-known in Canadian law.  Let us recall, however, that the concept of custody (and hence of custodial parent or non-custodial) has been eliminated from the French Civil Code.

We have seen that in the case of separation or divorce, the general rule is that parental authority is exercised jointly, and that the child may reside with both parents, on an alternating basis.  This scenario covers not only what we in Canada describe as shared custody but also other cases, namely situations where the child resides primarily with one parent but goes from time to time (but on a regular basis) to the home of the other parent.  In other words, the conventional situation of sole custody, with access rights, is settled in French law by the joint exercise of parental authority and determination of the child's residence, without reference to the concepts of custody or access.

On the other hand, as we have seen above, a court may decide, in the best interests of the child, to award unilateral exercise of parental authority to one parent (art. 373-2-1 C.C.).  The other parent then obtains a "right of visit and accommodation," and this right may only be refused for serious reasons.  This "right" is also described as a veritable duty for the parent.  The new article 373-2, para. 2 in fact provides:  "Both the father and the mother must maintain personal relations with the child (…).  According to the report of the Dekeuwer-Défossez Commission, this affirmation reflects the idea that the parental function is a set of indissolubly linked duties, and that the visitation and accommodation rights granted to parents also reflect the desire of the child to preserve relations with both parents."[155].

Along the same lines, the supervisory right of the parent who, in exceptional cases, does not exercise parental authority is also considered a duty, as article 373-2-1, para. 3 C.C. stipulates.  This provision also states that this parent must be informed of any important choices concerning the life of the child.  The right to information appears as the guarantee of the effective performance of the duty of supervision.

A judge who rules on the terms and conditions for exercising parental authority in the event of separation of the parents must take into consideration "the aptitude of each of the parents to assume their duties and to respect the rights of the other"(article 373-2-11 C.C.).[156]  Furthermore, article 373-2-6, para. 2 provides that "the judge may take any measures to guarantee the continuity and effectiveness of the child's ties with each of the child's parents."

We can therefore say that the concept of joint parenthood is the principle underlying the reorganization of parental roles, even in cases where parental authority is exercised unilaterally.  This emerges clearly from the report of the Dekeuwer-Défossez Commission, which states that the new legislation thus tends to avoid having the rights of one parent be opposed to those of the other:  "Taking the child rather than the parents as the starting point, the text establishes the child's right to be raised by both parents and to preserve personal relations with each of them."[157]

The new law contains a remarkable application of this principle of joint parenthood in regard to the child's moving.  For example, paragraph 3 of the new article 373-2 stipulates:

Any change of residence by one of the parents, when it changes the terms and conditions for exercising parental authority, must first be indicated to the other parent is a timely manner.  In the event of any disagreement, the more diligent parent shall bring the matter before the family affairs judge, who shall make a ruling based on what the best interests of the child require.  The judge shall allocate travel costs and adjust accordingly the amount of the contribution to the maintenance and education of the child.

Out of a concern to prevent international abduction, the new article 373-2-6 of the Civil Code now confers upon judges the power to order that a prohibition against taking a child out of French territory without the authorization of both parents be entered in the parents' passport.  Out of the same concern to combat non-compliance with orders pertaining to parental authority and the child's mode of residence, criminal sanctions have been strengthened in regard to non-representation[158] and removal of a child.[159]

Finally, we should mention that the new provisions aim to foster contacts between the child and third parties.  In the old legislation, a third party had to invoke "exceptional circumstance" to obtain the right to maintain personal relations with a child (for example, visitation rights). Henceforth, all a third party needs to do is prove that these contacts are in the interests of the child.  The burden of third parties is thus lightened.  In cases of separation, this innovation should be particularly helpful to spouses who have acted in loco parentis in a blended family (article 371-4, paragraph 2 C.C.).

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