RECONCEIVING THE FAMILY Phần 9 ppt

P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 Empowerment and Responsibility 437 this as well, of course, through recharacterization as marital property over time, but only following the duration formula. Apart from allocating assets, English law directs courts to consider the needs of the parties. These may be met by capital transfers or income orders. Professor Ira Ellman, the principal drafter of the Principles, has usefully contrasted the obscurity of the process by which the English courts in McFarlane v. McFarlane and Parlour v.Parlour 27 determined the quantum ofthesums necessary to meet future “needs”and the compensation conceptof the Principles. 28 However, payments for needs are the functional equivalent in English law to the Principles’ compensation payments. The concept of “needs” is relative, allowing for consideration of the respective postseparation financial situations of the parties. 29 But the starting off point is different. It does not lie in an overt attempt to close the disparities between the partners’ financial circumstances atseparation, butin an effort to look forward and assess how the obligee will experience her new standard of living in the light of what she had been used to during the marriage. If the result will be too great an imbalance, need will be made out and the gap narrowed. Hence both the calculation of needs in English law and of compensatory payments under the Principles can take into account the prospective financial position of the obligee at the time of separation, and recipients of both needs- based and compensatory payments will be under a duty to mitigate their losses. Neither consideration is relevant in the allocation of property. And, like compensatory payments, the duration of needs payments is also likely to be related to the length of the cohabitation and the exercise of child care because it has been held that the appropriateness of limiting the duration of needs payments 30 will be defeated where there are young children, or in the case of lengthy marriages. 31 It would not, therefore, be a large move for English law to reduce the subjectivity of the assessment of need by following an approach closer to that of the Principles’ compensatory model. The unstructured nature of English law also threatens to blur the important distinc- tion between earned entitlements and needs or compensatory awards. In McFarlane v. McFarlane; Parlour v.Parlour 32 the courts posed the question whether a partner’s earn- ing capacity after separation might be treated as capital and subject to allocation on the balance-sheet approach. The answer seemed to be negative, as it is under the Principles, but the reasoning of the lower courts was unclear. The confusion arose as a result of the fact that the husbands were asked to accumulate part of their future earnings into a capital sum that would meet their former partners’ future needs through a “clean break.” But remarks were made in the judgments that the wives had earned a “fair share” in such capital by their efforts during the marriage. This suggests that a partner might be able to “earn” a share in the other’s income after separation, and in this way avoid the duty to mitigate. In short, the judgments risked blurring a necessary bright line between balance sheet asset allocation and compensatory payments. 33 27 [2004] EWCA Civ 872. 28 IraEllman, Do Americans Play Football?, (2005) 19 Int/J. L. Poly & Fam. 257. See also Joanna Miles, Principle or pragmatism in ancillary relief? The Virtues of flirting with academic theories and other jurisdictions, (2005) 19 Int/J. L. Poly & Fam. 242. 29 “The proposed standards of living of both spouses must be a relevant consideration and, where finances permit, they should not be wholly out of proportion to each other”: Gojkovic v. Gojkovic [1990] 2 All ER 84, at 88. 30 The court must expressly consider the appropriateness of putting a limit of the duration of needs payments. Matrimonial Causes Act 1973, s. 25A(1). 31 Suter v. Suter and Jones [1987] 2 FLR 232; SRJ v. DWJ (Financial Provision) [1999] 2 FLR 176. 32 [2004] EWCA Civ 872. 33 See John Eekelaar, Shared Income after Divorce: A Step too Far, (2005) 121 Law Q.Rev.1. P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 438 John Eekelaar For the balance sheet approach to work fully, elements other than the contributions that are relevant to earning a reward need to be kept off the sheet, or at least reduced to a minimum. Hence, for the Principles, marital misconduct is irrelevant, except in narrowly defined circumstances termed “financial misconduct.” 34 This stance has created misgivings among American commentators. 35 Butvirtual exclusion of marital misconduct has been accepted in England ever since Lord Denning robustly declared in 1973 that it was to be taken into account only if “obvious and gross.” 36 It is true that this expression has fallen out of favor, and by statute courts now may take conduct into account where it is “equitable” to do so, 37 but in practice courts strongly discourage the introduction of arguments about misconduct unless it relates to financial matters. Consistently with the broadly equitable nature of the jurisdiction, however, and unlike the Principles, the English courts have avoided defining these issues too precisely. 38 More significant, toEnglish eyes, isthe Principles’limited reference tothewelfareof the children. The English statute makes this the “first consideration.” It is not “paramount,” as it is in cases concerning with whom the child will reside and the degree of contact (visitation) the child will have with the nonresidential parent, and the broad objective remains doing justice between the parties, 39 but the requirement allows courts readily to depart from the equality outcomes indicated by the balance sheet approach where the children’s welfare demands. It is not uncommon for the matrimonial home to be transferred entirely to the children’s care giver if this is deemed to be in their interests. 40 In contrast, the Principles merely allow the sale of a home to be deferred temporarily “in order to avoid significant detriment to the child.” 41 Under the Principles, it seems that the balance sheet must prevail, even to the (nonsignificant) detriment of a child, whereas the long-held approach of the English law will allow the balance sheet approach (as possibly imperfectly applied) to determine the matter only in residual cases where the children’s interests have been fully met. It is therefore possible that, in England, the balance sheet approach will only be relevant in relatively rare “big money” cases: for the most part, the consequences of achieving the optimal outcome for the children will leave little on the balance sheet. C. The Balance Sheet Approach and the Question of Legitimacy It has been notoriously difficult for courts to justify the exercise of coercive powers over former spouses after divorce, for the simple reason that the marital status, in which a spouse’s duties might be grounded, has now disappeared. So the courts have referred to such things as deterrence against divorce, returning property which would otherwise constitute an unfair windfall, protecting former wives from resorting to prostitution, and 34 Principles § 4.10;Principles § 4.10;Principles §1,Topic 2, at 42–85. 35 See, for example, Silbaugh, this volume; Westfall, this volume; Wardle, this volume. 36 Wachtel v.Wachtel [1973] Fam. 37 Matrimonial Causes Act 1973, s. 25 (2) (g), inserted by Matrimonial Proceedings and Property Act 1984. 38 Beach v. Beach [1995] 2 FLR 160 (financial recklessness); Clark v. Clark [1999] 2 FLR 498 (a “gold-digging” spouse). 39 Suter v. Suter and Jones [1987] Fam 111. 40 Clutton v. Clutton [1991] 1 FLR 242; Bv.B(Financial Provision: Welfare of Child and Conduct) [2002] 1 FLR 555 (total proceeds of sale of house transferred to wife). 41 Principles § 3.11. P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 Empowerment and Responsibility 439 relief of need (with a possible concern for depleting state welfare funds). 42 The balance sheet approach seeks legitimacy in the generalprinciple of justice that contributions to acommon enterprise should be fairly rewarded. This can be seen as at once treating the claimant as empowered by virtue of (her) efforts; and the obligee as under a responsibility to respond to those claims. This is broadly consistent with the direction in which family law appears to be moving. As the drafters’ Overview to the Principles nicely puts it: “ reconceptualizing the [alimony’s] award’s purpose as the equitable allocation of a joint loss changes it from a plea for help to a claim of entitlement.” 43 Perhaps this is not quite true, because one could understand the satisfaction of need as an entitlement, too. However, that is not an earned entitlement: it rests on paternalistic judgments of desert, both moral and material. It is astonishing that at about the same time, but almost cer- tainly without knowledge of the drafters’ deliberations, English law, in White v. White, 44 moved sharply in the same direction. However, the Principles are not completely con- sistent on the basis for the entitlement claim. The predominant basis seems to be that it is earned through the claimant’s efforts. An alternative explanation, that it flows from duties inherent in the marital obligation, seems ruled out by the application to domestic partnerships. An explanation premised on earning also fails to explain why recharacter- ization of separate property does not also apply in domestic partnerships. There is an alternative basis of legitimacy for the exercise of these powers: the intentions of the par- ties. However, the Principles are consistent in refusing to ground the justifications for property allocation or compensationonprior intentions of the parties, 45 except insofar as they are free to enter into contracts about them, which the Principles allow subject to procedural safeguards. 46 English law is more suspicious of the operation of contract, either premaritally or with regard to nonmarital cohabitation. The closest England and Wales have come to giving effect to premarital contracts was in a government paper in 1998 stating that it was “considering whether there would be advantage in allowing cou- ples, either before or after their marriage, to make written agreements dealing with their financial affairs which would be legally binding on divorce.” 47 This did not find favor, even as applied to the unmarried, 48 although attitudes may have recently shifted in some parts of the legal profession. 49 The courts’ attitude is that agreements do not restrict judicial discretion, but judges may implement an agreement, or certain aspects of the agreement, if they consider this to be fair. 50 Analytically, there seems no reason why entitlements based on earned shares should not be controlled by prior agreement. One may set the terms of the rewards for one’s labor. But where awards are for compensation for loss, or, especially, to meet need, particularly in relation to children, one would expect greater reluctance to allow the matter to be controlled by prior agreement. Since need still plays an important part in the English scheme, this may explain the reluctance to recognize agreements as binding. 42 See John Eekelaar and Mavis Maclean, Maintenance after Divorce(Oxford University Press, 1986), ch.1; Principles, ch. 1,overviewofchs.4and 5. 43 Principles ch. 1 (discussing overview of Chapters 4 and 5,section II (b)). 44 [2001] 1 All ER 1. 45 Principles §§ 4.12; 5.04. 46 Principles § 7.04. 47 Supporting Families: A Consultation Document (1998), para. 4.21. 48 See the Law Society, Cohabitation: the Case for clear law: Proposals for Reform (Law Society, 2002), at 42. 49 Solicitors’ Family Law Association, Recognition of Pre-Marital Agreements in England and Wales (SFLA, 2004). 50 Mv.M[2002] 1 FLR 654; Kv.K[2003] 1 FLR 120. P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 440 John Eekelaar D. Unmarried Domestic Partners It has already been remarked that the Principles allow the same provisions for property allocation and compensation payments to be applied to unmarried domestic partner- ships, except for the recharacterization of separate property. 51 The reason given for the exception is simply that no state presently recharacterizes separate property. 52 It is not clear why the Principles held back from the logic of the whole structure for this rea- son. Nevertheless, the proposals as they stand reveal a much more systematic approach to such partnerships than is found in English law. The English legal provisions applica- ble to opposite sex and same-sex domestic partnerships range from general principles of property and trust law which govern their property relationships, through a wide range of scattered statutory enactments applying various legal provisions to persons living together “ashusband and wife,” such as compensation for injury to one partner by the estate of the deceased partner. But three important developments have come close to transforming the picture. The gay marriage issue falls well outside the drafters’ charge, although same-sex partners will comprise a significant proportion of domestic partners covered by the Principles. The Civil Partnership Act 2004 has cleverly created an institution for England and Wales for same-sex partners that is equivalent to marriage with hardly a murmur of protest. This may have been achieved, first, by assiduously avoiding the word “marriage” in the legislation, and simply copying into it almost every word of law which applies to marriage; and, second, by explicitly enacting that (unlike in the case of marriage) the formation of the partnership cannot take place in religious premises 53 and that “no religious service is to be used while the civil partnership registrar is officiating at the signing of a civil partnership document.” 54 There is nothing, of course, to stop the civil partners from participating in a religious ceremony after the partnership is concluded. For same-sex partners who do not enter civil partnerships, the House of Lords, applying its duty under the Human Rights Act 1998 to interpret legislation as far as possible consistently with the European Convention on Human Rights and Fundamental Freedoms, has held that the expression “living together as husband and wife” should be read as, “living together as if husband and wife,” thus extending the same protections to same-sex cohabitants as to opposite sex ones where that wording is used. 55 The third development concerns a much larger group of domestic partners: those who are parents to a common child. Since they are unmarried, the courts have no power to order outright transfers of assets from one to another, so they cannot transfer ownership of the home from husband to wife where this is in the children’s interests, as they can for divorcing spouses, as described earlier. However, they can order a temporary transfer 56 (as the Principles provide between married parents). Despite these provisions, there are calls for injecting more coherence into the law relating to unmarried domestic partners, including the extension to unmarried parents of the judicial powers currently exercisable with respect to married parents. 57 51 Principles § 6.05. 52 Principles § 6.04 cmt. b. 53 Civil Partnership Act 2004, s. 6(1)(b). 54 Id.s.2(5). 55 Ghaidan v. Godin Mendoza [2004] UKHL 30; [2004] 3 All ER 411. 56 Children Act 1989, s. 15 and Schedule 1. 57 The Law Society, Cohabitation: the case for clear law: Proposals for Reform (The Law Society, 2002) para. 96. P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 Empowerment and Responsibility 441 II.Parenthood and the Allocation of Custody Allocation The themes underlying thePrinciples’ approachto financial and property issues reappear in their treatment of parents and children. Just as the source of obligation to a large extent breaks loose from an institution source, marriage, so also the parent-child provisions extend beyond “legal” parental relationships to embrace parents by estoppel (broadly, when someone has lived with a child in the belief they are the parent, or held out as they are) and de facto parents (broadly, where someone lives with child for more than two years exercising the same or more caretaking functions as the other parent). 58 English family lawyers would be comfortable with these provisions, though predictably English law is both simpler and more discretionary. Married stepparents who have treated the child as a “child of the family” 59 have a right to apply for any of the main orders 60 dealing with the upbringing of children: a “residence” order would confer on them “parental responsibility” (and married stepparents can now acquire this simply by agreement with the other parent). 61 Any other person can apply for such an order with the leave of the court. In deciding whether to give such leave, the court must take into account the nature of the application made (for example, is it for a residential arrangement or only for contact (visitation)?), the applicant’s “connection with the child” and “any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it.” 62 If leave is given, the substantive issue is decided according to the “best interests” test. 63 This flexibility 64 does not seem to have caused the kind of anxiety which the Principles have generated. 65 This may be because of the way the Principles treat the best interests test. They draw on an idea originally put forward by Professor Elizabeth Scott in 1992 66 which looks surprisingly similar to the balance sheet approach. This is that, where agree- ment cannot be reached, the court should allocate “custodial responsibility” so that “the proportion of custodial time the child spends with each parent approximates the propor- tion of time each parent spent performing caretaking functions for the child prior to the parents’ separation or, if the parents never lived together, before the filing of the action.” 67 Professor Scott’s arguments, as enshrined in the Principles, are beguiling. The maternal preference presumption exhibits gender stereotyping; the primary caretaker presumption downplays the role of secondary caretakers; the joint custody presumption is an unrealistic aspiration. In contrast, the approximation presumption minimizes disruption to children and is more likely to reflect parental preferences. The Principles in particular stress the 58 Principles § 2.03. 59 This test should be easy to satisfy in most cases of step-parenthood. See Andrew Bainham, Children: The Modern Law 234 (3d ed., 2005). 60 These are “residence”, “contact,” “prohibited steps,” or “specific issue” orders under section 8 of the Children Act 1989. 61 Adoption and Children Act 2002, inserting new section 4A into the Children Act 1989. “Parental responsibility” means “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” Children Act 1989, s. 3(1). 62 Children Act 1989. 63 Id. 64 This flexibility appears to exist in France, through a flexible use of the concept of possession d’´etat. M T. Meulders- Klein, La Personne, La Famille, La Droit (Brussels, Bruylant 1999), p. 205. 65 Robin Fretwell Wilson, this volume. 66 Elizabeth S. Scott, Pluralism, Parental Preferences and Child Custody,80Cal. L. Rev. 615 (1992). 67 Principles § 2.08. P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 442 John Eekelaar greater certainty it is claimed such a presumption would promote. It is therefore rather ironic that there should be particular concerns about its application in the case of de facto parents. 68 The issue of presumptions in the case of contact disputes has recently been under debate in England. 69 The statutory prescription is that “the child’s welfare shall be the court’s paramount consideration.” 70 The only statutory presumptions are that delay in reaching decision is likely to prejudice the child’s welfare and that if the court wishes to make an order, it must be satisfied that it is better to do so than to make no order at all. 71 Otherwise, the statute merely sets out “considerations” to be taken into account. But, as in the case of financial and property matters, reality is more complex. Three legal points are particularly important. First, in 1970 the House of Lords interpreted “paramount” as if it meant “sole,” so that any other considerations were relevant only insofar as they had abearing on the child’s welfare. 72 Second, the courts have operated on certain “factual” presumptions, or “assumptions,” of which the clearest are that children are generally better off with their biological parents than with strangers and that contact with a nonresidential parent is generally “a good thing.” Third, the right to respect for family life enshrined in the European Convention on Human Rights and Fundamental Freedoms 73 has been interpretedby theEuropeanCourt ofHumanRightsas requiring statesto takeall reasonable measures to ensure the continuation of contact between nonresidential parents and their children. 74 Since human rights jurisprudence is now part of English law, it is unlikely that the interpretation given to “paramount” by House of Lords in 1970 still represents English law. This new emphasis on the “rights” of nonresidential parents is in line with the generally more pronounced rights discourse of contemporary family law, although the European Court of Human Rights has been criticized for relative neglect of children’s rights. 75 That court has, however, said that the parents’ rights are subject to the children’s interests which “depending on their nature and seriousness” may override those of the parents, 76 and even that the children’s interests are “paramount.” 77 Of greater political impact has been a campaign by a father’s rights pressure group, Fathers4Justice, one of whose mem- bers hurled a condom with purple dye at the Prime Minister, Tony Blair, in the House of Commons. That group and its supporters demanded a presumption of equal shar- ing. The government, however, resisted the introduction of any additional statutory pre- sumptions, taking the view that problems lay not in the formulation of the law but in improving “advice, information, mediation, conciliation and enforcement processes.” 78 68 See Wilson, supra note 65. 69 See Fourth Report of the Constitutional Affairs Committee, Family Justice: the Operation of the Family Courts, Department for Constitutional Affairs, 2 March 2005. 70 Children Act 1989, s. 1(1). 71 Children Act 1989, s. 1(2) and (5). 72 Jv.C[1970] AC 668. 73 1950 European Convention on Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 8. 74 There are many cases: see, for example, Hansen v. Turkey [2004] 1 FLR 142. 75 Jonathan Herring, The Human Rights Act and the welfare principle in family law: conflicting or complementary?, (1999) 11 Child & Fam. L. Q. 223; Jane Fortin, The HRA’s impact on litigation involving children and their fam- ilies (1999) 11 Child & Fam. L. Q. 237; John Eekelaar, Beyond the Welfare Principle (2002) 14 Child & Fam. L. Q. 237. 76 Elsholz v. Germany [2000] 2 FLR 486. 77 Yo usef v. The Netherlands [2003] 1 FLR 210. 78 HM Government, Parental Separation: Children’s Needs and Parents’ Responsibilities: Next Steps Cm 6452 (2005), para. 14. P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 Empowerment and Responsibility 443 The government was influenced by arguments that if one new statutory presumption was created, there would be pressure for qualifications and counterpresumptions, such as exclusions in cases of violence (how defined?) 79 or of severe conflict, which would lead to adrafting nightmare and inhibit progress on more practical measures. This conclusion is in line with the position taken in Canada, where the “one size fits all” approach was rejected. 80 It is unlikely that the “approximation” approach was considered by the UK Government. However, it is hard to think that it would have been found attractive. The Principles do of course, see the approach as furthering children’s interests. But if it is to be presumed that an arrangement will be in a child’s best interests, it must be clear that this will be so in an overwhelming majority of cases. In the absence of clear evidence that time matching will satisfy this, or even that this is what parents usually do by agreement, it fails as a presumption. There are simply too many exceptions and qualifications. The Principles recognize them, and attempt to restrict them to cases where the arrangements would be “extremely impractical” or would “substantially” interfere with the child’s need for sta- bility. 81 These seem potentially heavy penalties for a child to pay. Of course, it is likely that many arrangements, at least in their early stages, will in fact turn out as envisaged by the approach: but the mechanics of the arrangements should be driven by the sub- stantial goal of sustaining beneficial and workable relationships rather than as ends in themselves. III. Overview and Conclusion The Principles reveal some striking insights. Perhaps the most important is the recog- nition that family law has to respond to personal relationships which are not determined by social or legal institutions. Parallel to that is the recognition of the dynamics of those relationships. In important empirical studies on the nature of family responsibilities in England, Janet Finch has stressed the way a sense of obligation accumulates over time. 82 The Principles respond to this, though more in terms of building up reward for invest- ment of personal capital than of recognizing a growing sense of obligation. This may be wise, because the enforcement of an obligation after separation, especially if it is to meet needs, runs into major problems of assessment of desert. Here, another powerful insight of the Principles comes into play: recognizing the limits of law. Although made explicit only in relation to child custody determinations, 83 this surely underlies the unwilling- ness to become involved in assessments of postseparation need and preseparation marital behavior. If someone’s former spouse suffers misfortune unconnected with the marriage or separation, it is probably right to leave it to the parties’ own sense of morality about whether the “ex” should help out rather than to embroil the law. On these points the 79 The English courts have declined to endorse a presumption against contact even with a violent parent: re L; re V (Contact: Domestic Violence) [2000] 2 FLR 334. 80 See Helen Rhoades and Susan B. Boyd, Reforming Custody Laws: A Comparative Study, (2004) 18 Int’l J. L. Poly & Fam. 119. 81 See e.g., Principles § 2.08 (f). 82 Janet Finch, Family Obligations and Social Change (London, Polity Press, 1989); J. Finch and J. Mason, Negotiating Family Responsibilities (London, Routledge, 1993). 83 See Principles ch.1,intro. III. P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 444 John Eekelaar Principles have much to teach English law, which once ordered a former husband to increase financial support to his former wife when she had a child after the separation byadifferent man (who had left the scene). 84 English law needs also to learn from the separation between the conceptual bases of property allocation and postseparation com- pensatory payments, and might with profit reduce the subjectivity of the needs criterion by adopting something like the Principles’ compensation model. However, the English prioritization of the child’s welfare, and the flexibility allowed by taking into account severe misconduct (with strong judicialdiscouragement from interpreting this too widely) may be advantages. Therearetwo featuresof the Principleswhereit is possiblethat the nobility of thevision might need a practical corrective. Professor Elizabeth Scott saw the “approximate time” approach as a “continuation of the intact family.” In 1993, the French sociologist, Ir ` ene Th ´ ery, remarked that the mediation movement was premised on the idea that, although a marriage might be over, the family, once constituted by cohabitation, nevertheless con- tinued. 85 The balance sheet approach is a strong manifestation of that belief. But in many cases this may be a delusion. There is a strong countervision that sees separa- tion as changing everything and the divorce process as about managing that change. This may require departures from the financial and property balance sheet where the children’s interests require it, and acceptance that parental roles are bound to be different. The other noble vision is the pursuit of greater certainty, to be achieved by detailed provisions for many eventualities. Professor Ira Ellman, the principal drafter, has frankly stated that, in view of the inherently uncertain nature of the outcomes of legal interventions in family law, it matters less what rules are chosen than that whatever is done is clear and applied with consistency, for that, at least, will be fair. 86 He is surely right about the limits of legal interventions in family matters. But has the quest for certainty been subverted by complexity of application? It is hard to imagine many divorcing couples getting together with the Principles andsorting matters out bythemselves. They maynotbe intendedto be used that way. The ALI certainly was attempting to provide guidance across a vast country with many jurisdictions. Still, when state legislatures fill in details, will the results be less complex? Will not lawyers, or other negotiators, be encouraged to argue about the many formulations of law, and the many matters of fact that need to be placed on the balance sheet: from time expended on separate property to hours devoted to playing with children? Courts, and couples, do need principles to follow. English courts have been too slow to articulate these. But the principles need not be very elaborate. Property arrangements must aim to secure stability for the children. Subject to this, the balance sheet approach works well for the allocation of property, where it could be broadly stated that all contributions to family wealth are to be treated as being of equal worth, with nontangible contributions (generally) gaining value with the passage of time (including the actual and potential time spent caring for children). Postseparation support should be seen as compensatory. Arrangements for children should aim to sustain a stable environment, reduce conflict 84 Fisher v. Fisher [1989] 1 FLR 423. The wife was looking after her former husband’s child, so the award could be justified as a form of child support: but thecourt simply referred to itsdiscretionary assessmentof the circumstances. Id. 85 Ir ` ene Th ´ ery, Le D ´ emariage (Paris, Editions Odile Jacob, 1993). 86 IraEllman, Why Making Family Law is Hard,35Ariz. St. L. J. 699 (2003). P1: KAE 0521861195c23 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:55 Empowerment and Responsibility 445 and maintain, as far as possible, the child’s beneficial relationships with parents or parent- figures, whose independent interests should be recognized as far as possible, but as being subordinate to those of the children. Such principles will play themselves out in different ways for different sets of people. They should provide sound guides for separating parties, their advisers, mediators, and lawyers. Sometimes decisions will need to be made which require the exercise of judgment on the application of the principles: the courts are there to make them. P1: KAE 0521861195c24 CUFX006/Wilson 0 521 86119 5 June 3, 2006 5:49 24 The Past Caretaking Standard in Comparative Perspective Patrick Parkinson The Principles advocate a radical new approach to determining parenting arrangements after separation. 1 The central concept is found in Section 2.08: “(T)he court should allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents’ separation.” 2 This is the “past caretaking” standard. It should be seen as a ‘standard,’ rather than a rule, since the ‘rule’ can be modified on many different grounds. The past caretaking standard is based on the concept of continuity between the intact and separated family. The presumptive allocation of custodial responsibility that results from this assessment can be modified, but only to the extent necessary to achieve other objectives contained in Section 2.08(1). 3 There are eight objectives in Section 2.08 and a number of exceptions provided in Section 2.11. This latter sets out a number of justifications for limiting the parental responsibility of a parent in order to protect the child, the other parent, or other 1 Foranexplanation and defense of the past caretaking standard, see Katherine T. Bartlett, Preference, Presumption, Predisposition, and Common Sense: From Traditional Custody Doctrines to the American Law Institute’s Family Dissolution Project,36Fam. L.Q.11(2002). 2 Principles § 2.08. 3 Principles § 2.08(1). The objectives are as follows: (a) to permit the child to have a relationship with each parent which, in the case of a legal parent or a parent by estoppel who has performed a reasonable share of parenting functions, should be not less than a presumptive amount of custodial time set by a uniform rule of statewide application; (b) to accommodate the firm and reasonable preferences of a child who has reached a specific age, set by a uniform rule of statewide application; (c) to keep siblings together when the court finds that doing so is necessary to their welfare; (d) to protect the child’s welfare when the presumptive allocation under this section would harm the child because of a gross disparity in the quality of the emotional attachment between each parent and the child or in each parent’s demonstrated ability or availability to meet the child’s needs; (e) to take into account any prior agreement, other than one under § 2.06, that would be appropriate to consider in light of the circumstances as a whole, including the reasonable expectations of the parties, the extent to which they could have reasonably anticipated the events that occurred and their significance, and the interests of the child; (f) to avoid an allocation of custodial responsibility that would be extremely impractical or that would interfere substantially with the child’s need for stability in light of economic, physical, or other circumstances, including the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement; (g) to apply the Principles set forth in § 2.17(4) if one parent relocates or proposes to relocate at a distance that will impair the ability of a parent to exercise the presumptive amount of custodial responsibility under this section; (h) to avoid substantial and almost certain harm to the child. 446 [...]... reported that their fathers had wanted more time with them than they had or their mothers wanted them to have Forty percent reported that their fathers had wanted them to spend equal time or more with them.130 There is similar evidence from Australia In one study, 41 percent of fathers contacted in a random telephone survey of divorced parents in 199 7 indicated that they were dissatisfied with the residence... Amato eds., 199 9); Michael Lamb, Noncustodial Fathers and Their Impact on the Children of Divorce, in The Post-Divorce Family: Children, Parenting and Society (Ross A Thompson & Paul R Amato eds., 199 9) 97 Michael E Lamb, Kathleen J Stemberg & Ross A Thompson, The Effects of Divorce and Custody Arrangements on Children’s Behavior, Development, and Adjustment, 35 Fam & Concil Cts Rev 393 ( 199 7); Jennifer... despite its removal by the Family Law Reform Act, 199 5 (Austl.) This Act adopted reforms on similar lines to the Children Act, 198 9 (Austl.), with the terms “custody” and “access” being replaced by “residence” and “contact,” and the rhetoric of “parental responsibility” driving out notions of parental rights See John Dewar, The Family Law Reform Act 199 5 (Cth) and the Children Act 198 9 (UK) Compared – Twins... exception, rather than the rule, is likely to be the focus of litigation A father may concede that the mother was the primary care giver during the marriage, but argue that the determining factor ought to be the child’s wishes.23 The mother may counter that those wishes are the consequence of manipulation by the 21 See Principles § 2.08 cmt c, at 183–85 Gary Crippen, Stumbling Beyond Best Interests of the Child:... parentale par la loi du 8 janvier 199 3, 199 7 Recueil Dalloz e e e Chroniques 363 and the cases cited therein 460 Patrick Parkinson Two commissions were established to advise the Government concerning possible reforms to the law of parental authority in the 199 0s One took a sociological view, under the presidency of Ir` ne Th´ ry.74 The other focused more on legal issues under the prese e e idency of Francoise... Child and Family Welfare, supra note 48, considered this option but did not adopt it, to the disappointment of the minority See John Guidubaldi, minority report, 87, 93 97 58 La Civ Code Ann art 132 ( 199 9 & Supp 2005) (“If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award In the absence... acknowledged the relevance of the Garska v McCoy factors in determining who has been the primary care giver.18 In preparing the successive drafts of the Principles during the 199 0s, the drafters preferred Professor Scott’s approach to other approaches that were available to them in American jurisdictions or elsewhere II The Past Caretaker Standard and the Claim to Predictability One major claim made for the. .. between the child and each parent Although one parent has been the primary care giver, the other argues that there is a gross disparity in the “quality of the emotional attachment between each parent and the child.”26 Another dispute may be about whether one parent should have contact with the child at all, or should only have supervised contact The issue here is not the relative involvement of the parents... of the Impact of Part VII ( 199 6) The research was conducted mostly in November 199 5 with some further interviewing done in January 199 6 Id at 14 The legislation commenced 462 Patrick Parkinson divorced fathers,85 reflected views already held by the great majority of the population When parents are married, 78 percent of Australians think children should always be cared for by both parents, sharing the. .. feature prominently in the matters that go to trial Thea Brown et al., Violence in Families: Report No 1 – The Management of Child Abuse Allegations in Custody and Access Disputes Before the Family Court of Australia ( 199 8) See also Helen Rhoades, The “No Contact Mother”: Reconstructions of Motherhood in the Era of the “New Father,” 16 Int’l J.L Pol’y & Fam 71 (2002) Regarding problems in the courts’ handling . which require the exercise of judgment on the application of the principles: the courts are there to make them. P1: KAE 0521861 195 c24 CUFX006/Wilson 0 521 861 19 5 June 3, 2006 5: 49 24 The Past Caretaking. 233 ( 199 9). 13 Pikula v. Pikula, 374 N.W.2d 705 (Minn. 198 5). P1: KAE 0521861 195 c24 CUFX006/Wilson 0 521 861 19 5 June 3, 2006 5: 49 The Past Caretaking Standard in Comparative Perspective 4 49 the. where the exception, rather than the rule, is likely to be the focus of litigation. A father may concede that the mother was the primary care giver during the marriage, but argue that the determining