Appendix 1: Some Overseas Examples of Laws for Guardianship, Custody, and Access
These are difficult issues which laws all over the world have tried to grapple with. The overseas examples below may provide some good ideas and some warnings for New Zealand. None of them is perfect even at home, and none has a perfect model for New Zealand.
United Kingdom In the United Kingdom the Children Act 1989 has replaced their legal concepts of "guardianship", "custody", and "access", which were very similar to our own. They now have "residence", "contact", "prohibited steps", and "specific issue" orders. The terms are designed to be practical and to avoid the idea that anyone has possession of a child.
Unlike the old custody orders, the new law does not remove parental authority from one parent or confer sole power on the other. The law is designed so that the Court can make orders to settle particular matters, and having done that, neither parent may then upset the arrangements. But overall, they are more flexible. They allow the Court to make whatever arrangements seem best in the particular case, doing so by dealing with practical questions rather than abstract rights.
Some have commented that the law changes may have lowered the emotional tension in UK family law matters. But recent research has raised concerns that there is now an almost irrefutable presumption that all contact is good for children and shared parenting is always the best option. There are concerns that this is replacing the primary criterion of the best interests of the child.
Australia
Australia followed a very similar approach to that in the UK in 1995, amending their Family Law Act 1975 to replace notions of "guardianship", "custody" and "access" with the all-embracing notion of "parental responsibility", and the Court's orders are now for parenting, residence, or contact. The law specifically encourages parents to reach agreement rather than seek a Court order. The parents' agreement can be in the form of a parenting plan which can be registered.
Under the new approach, both parents have parental responsibility - and this is not affected by separation, marriage, or remarriage. The focus has moved away from the idea that parents have rights over children, toward the basic notion of parents having responsibilities toward their children.
There has not been much research yet on the effects of the changes. One limited study raised concerns such as that the system may be becoming more tilted against women, and that there may be a downgrading of the child's point of view. Another study found that there was a shift to the contact parent having more time with their children and being able to exercise more responsibility, more fathers seeking more regular contact with their children, and a shift in the disputes from who gets custody to how do we arrange contact so it s in the child's best interest . On the other hand, the same study found it was more difficult for women to oppose contact on the grounds of domestic violence, that there has been an increase in litigated disputes, and that shared parenting responsibility often just did not work out.
United States
Family law in the United States is different in each state, but there are three general approaches: joint custody, primary care-taker, and parenting plans.
In the US, joint custody generally means that both parents share responsibility and authority for the major decisions concerning the child's upbringing, although one parent may have the responsibility for the child's living arrangements and day-to-day care. If the parent who does not physically look after the child on a day-to-day basis loses custody, he or she has no right to have any say in the child s life. The best that parent can hope for is visitation rights. It is thus not surprising that the law in many states has a bias toward joint custody.
Research on the US's approach to joint custody shows that it can work, but only if both parents agree on it. Because the law often really pushes people in this direction, the agreement may not work well in practice. And because the costs of not having joint custody can be so high, parents sometimes forego their claims to support and property if they are worried they may lose custody of their children or that the Court may order custodial arrangements which are harmful to them.
The primary care-taker approach means the judge has to make decisions based on who they think was the parent who spent the most time carrying out the day-to-day child care tasks before separation. In the main, there are only two ways this criteria can be challenged: the child s preference, and showing the parent is unfit to have custody. This approach arose out of concern that judges had too much leeway, and that in some states there was too strong a presumption in favour of joint custody. However, it leads to a focus on the care-taking and moral fitness of parents, rather than the needs of a child. It has lead to court action focusing on parental behaviour.
Finally, parenting plans are agreements between parents about arrangements for the children. Generally, if the parents cannot decide on a parenting plan the Court can impose one. There is some evidence that parenting plans have reduced acrimony between parents, because the focus has shifted from ownership of the child to the practical tasks of parenting. But the process can be long and sometimes litigious.
