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Parent Education Programs in Family Courts: Perils and Potential Shelley M Osgoode Hall Law School of York University From the SelectedWorks of Shelley M. Kierstead 2005 Parent Education Programs in Family Courts: Perils and Potential Shelley M. Kierstead, Osgoode Hall Law School of York University Available at: https://works.bepress.com/shelley_kierstead/13/ Parent Education Programs in Family Law Courts: Perils and Potential Shelley Kierstead A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF JURISPRUDENCE GRADUATE PROGRAM IN LAW Osgoode Hall Law School of York University Toronto, Ontario May 2005 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 0-494-11587-4 Our file Notre reference ISBN: 0-494-11587-4 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce,Canada de reproduire, publier, archiver, publish, archive, preserve, conserve,sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet,distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform,et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be includedBien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. i * i Canada Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Parent Education Programs in Family Law Courts: Perils and Potential By Shelley Kierstead a dissertation submitted to the Faculty of Graduate Studies of York University in partial fulfillment of the requirements for the degree of DOCTOR OF JURISPRUDENCE ©2005 Permission has been granted to the LIBRARY OF YORK UNIVERSITY to lend or sell copies of this dissertation, to the NATIONAL LIBRARY OF CANADA to microfilm this dissertation and to lend or sell copies of the film, and to UNIVERSITY MICROFILMS to publish an abstract of this dissertation. The author reserves other publication rights, and neither the dissertation nor extensive extracts from it may be printed or otherwise reproduced without the author's written permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Abstract There is ongoing debate in current family law discourse about how the state can best achieve the goal of promoting less conflict-laden decision making in child-related matters while allowing separated parents to exercise parental autonomy. Specifically, there is disagreement about whether formal or informal dispute resolution processes can most appropriately achieve this goal. In this dissertation, I argue that court-connected parent education programs have the potential to bridge this apparent “divide” between informal and formal dispute resolution mechanisms. Drawing on theoretical discussions about “empowerment” and “informed consent” in the mediation context, my thesis is that within a system that involves different dispute resolution alternatives, it is essential that participants are able to provide truly informed consent to whichever of the options they choose. Further, within such a system, the role of legal information and legal advice for consumers is critical. I explore the phenomenon of unrepresented family law litigants, and the importance of providing them with access to legal information. The work involves a combination of doctrinal and statistical analysis. After reviewing literature outlining current debates about family law dispute resolution processes, I examine socio-political motivations for the integration of parent education into the family law system. I then consider doctrinal limits on state interference with parental autonomy in the context of private custody disputes, and how these limits impact attendance policies for court-connected parent education programs. A review follows of data collected from a court-connected parent education program titled the Parent Information Program (PIP). Data were collected from court file reviews of a sample of iv Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. PIP participants along with a control group of non-PIP participant files. PIP participants also provided feedback on their views about program facilitation and content. After combining the doctrinal and empirical analyses to canvass questions about the most appropriate types of parent education program content and implementation policies, the dissertation concludes with the argument that such programs can play an important role in assisting parents to work their way through the separation process in an informed, autonomous manner that serves their children’s best interests. v Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Acknowledgements Many thanks to Patrick Monahan, Mary Jane Mossman, and Frederick Zemans for their guidance and feedback throughout this endeavour. Thanks also to Marc, Anique, and Alex, for their patience during what was sometimes a very challenging process. Finally, as always, I am grateful to my parents for their unwavering belief in my abilities. vi Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Table of Contents Abstract IV List of Tables............................................................................................................................ xiii Preface About the Context of this Project ............................................................................. 1 CHAPTER 1 - The Context for Parent Education Programs on Relationship Breakdown ............................................................................................................7 Introduction: Court-connected Parent Education Programs and Family Law Dispute Resolution .............................................................................................................7 1. The Development of Less Litigious Processes in Response to Criticism of the Traditional Adversary System.........................................................................................7 2. No-fault Divorce has Impacted the Focus of Family Law Dispute Resolution ..........................................................................................................11 3. Growing Societal Complexity Has Prompted Criticism of the Adversarial System..............................................................................................12 4. Promotion of Private Ordering as a Preferable Alternative ....................................... 15 a. An Introduction to the Work of Mnookin & Komhauser ........................15 b. Mediation Advocates’ Continued Promotion of Private Ordering 19 c. The Extent of “State-Sanctioned” Mediation ............................................ 22 5. Rejection of a Wholesale Adoption of Alternative Dispute Resolution ....................................................................................................................... 25 a. Mischaracterization of the Adversarial System and Professionals Working Within the System....................................................26 b. Concerns that Mediation is Not Always Empowering .............................32 6. Overlapping Concerns for Mediation and Litigation Advocates .............................. 34 a. Lack of Legal Representation ...................................................................... 35 b. Participant Autonomy .................................................................................. 38 c. Roles of Professionals .................................................................................. 39 d. Best Interests o f the Child ............................................................................41 e. State Role in Family Lives...........................................................................42 f. Specific Clientele Groups .............................................................................44 vii Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 7. Summary and Definition of the Research Problem ...................................................
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