Skip to main content Accessibility help
×
Hostname: page-component-77c89778f8-9q27g Total loading time: 0 Render date: 2024-07-21T23:23:04.846Z Has data issue: false hasContentIssue false

24 - The Past Caretaking Standard in Comparative Perspective

Published online by Cambridge University Press:  25 January 2010

Patrick Parkinson
Affiliation:
Professor and Head of the Law School, University of Sydney, Australia
Robin Fretwell Wilson
Affiliation:
University of Maryland, Baltimore
Get access

Summary

The Principles advocate a radical new approach to determining parenting arrangements after separation. 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.” 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). 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 member of the child's household from harm, including abuse, neglect, or abandonment of a child, domestic violence, and abuse of drugs or alcohol. Given the overlap between Sections 2.08 and 2.11, some factual circumstances may be argued on more than one ground.

The past caretaking approach is also relevant to the allocation of responsibility for making significant parental decisions.

Type
Chapter
Information
Reconceiving the Family
Critique on the American Law Institute's Principles of the Law of Family Dissolution
, pp. 446 - 471
Publisher: Cambridge University Press
Print publication year: 2006

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×