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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

February 17th, 2012 by Robert Franklin, Esq.
The National Post’s Barbara Kay has demanded that the conservative government in Ottawa do what it has long claimed to support – enact into law of a presumption of equally shared parenting post divorce.  Here’s her article and, as usual, it’s excellent (National Post, 2/15/12).

Change a few names and every word she writes applies to the United States, the United Kingdom, Australia, New Zealand and most of western Europe and Scandinavia.  Put simply, there is no tenable argument against a presumption of equally shared parenting and the arguments in favor of it are overwhelming.

To be clear, equally shared parenting does not mean, in every case, a strict 50/50 split of time between father and mother.  Opinions may vary on the subject, but equal parenting roughly means anything within a 40% – 60%, or possibly 35% – 65%, range for each parent.

And of course, in cases of proven domestic violence that holds the potential to harm the child, all bets are off.  That means that, to keep a child from one of its parents, there must be sufficient objective evidence of abuse that is of a nature to put the child in danger.  Mere allegations cannot suffice.  Minor incidents like “Mommy grabbed Daddy’s arm and made a bruise” cannot suffice.  What must always be kept in mind is the gravity of the charge that must exist in order to deprive a child of its parent.

Two weeks ago the U.K. government announced its intention to amend the 1989 Children’s Act. Changes will include a “presumption of shared parenting” to ensure that children’s relationships with both parents continues after separation. Under the current adversarial system, as in Canada, legal custody battles almost invariably end with mothers gaining sole custody.

The decision was based more in pragmatism than compassion. Mounting sociological evidence confirms the terrible social costs of fatherlessness: triple the rates of truancy, teen pregnancies and drug abuse, to name a few.

In Canada, as in the U.S., equal parenting after divorce enjoys the support of the great majority of people.

Let’s hope the U.K. example will hasten the inevitable arrival of equal shared parenting (ESP) as the default presumption, in the absence of abuse, in Canada. This is, after all, an idea whose time came decades ago. The 1978 Family Law reform Act interpreted the “best interests of the child” to mean: “where feasible, a child should have maximum access to both parents”; the “animosity of the parents should not interfere with this interest”; and the “needs of both parents should be considered.”

The in-depth 1998 Senate-House of Commons Joint Committee Report For the Sake of the Children also recommended ESP as a default presumption. But the report fell into a black political hole. Guided by feminism-inspired “social context” courses they take at the National Judicial Institute, unaccountable family-court judges with no expertise in children’s best emotional and psychological interests privilege mothers’ rights in hugely disproportionate numbers.

The current winner-take-all system encourages antipathy between divorcing spouses and, by giving custody in the vast majority of cases to mothers, renders fathers little more than a source of money.

Indeed, fathers’ money is welcome, but the fathers themselves aren’t considered necessary to their children’s well-being at all, nor their children necessary to theirs. In 2003 justice minister Martin Cauchon stated, “Divorced fathers have no rights, only responsibilities.” He might well have added, “Divorced mothers have no responsibilities, only rights.” For fathers who fail to pay child support, even when they can’t pay, may spend more time in jail than a cocaine dealer and have their faces plastered on the Internet as “deadbeat dads”; but how many Canadian mothers have spent a night in jail for arbitrarily denying a father court-appointed time with his children?

The family court system’s preference for sole maternal custody is devastating to children, but it’s also bad for fathers who must suffer the double blow of losing their marriage partner as well as their children.

Most fathers anguish over the loss of their children. Post divorce suicide rates for men rise to 12-16 times those of divorced women, a direct reflection of the grief and trauma fathers suffer from their marginalization. And since residential fathers today spend virtually the same amount of time in hands-on parenting as mothers, their despair in exile is far more profound than it used to be.

Dr. Edward Kruk of the University of British Columbia has long studied the realities of shared and sole custody and has come down firmly on the side of shared parenting as best for fathers, mothers, children and the system of family law.

His most recent published article, in The American Journal of Family Therapy, offers 16 evidence-supported Arguments for an Equal Parenting Responsibility Presumption in Contested Child Custody. Amongst them, Kruk shows how and why equal parenting:

- preserves children’s relationships with both parents and vice-versa (right now about 30% of children have no contact with their non-custodial fathers);

- reduces feelings of insecurity and rejection in children;

- decreases parental conflict (40% of first-time incidence of family violence occurs after an adversarial separation);

- respects children’s wishes (70% of children of divorce approve equal parenting, as do 93% of the 8% of children raised in ESP homes);

- reduces incidence of ignorance or bias-based judicial decisions;

- reduces the risk of parental alienation that can and does flourish under sole custody conditions;

- guarantees what should be children’s and parents’ Charter rights to each other’s love and companionship, as enunciated in the United Nations declaration regarding the rights of children.

England shows signs of tentatively moving toward keeping both parents involved in children’s lives post-divorce.  Canada’s conservative government has long paid lip service to equal parenting and Canadians overwhelmingly favor it.  It is far past time for the goverment to put its money where its mouth is and do the one thing that would solve so many social ills at the stroke of a pen.

Thanks to Paulette for the heads-up, and thanks to Barbara Kay for so often being the strong voice of principle and reason people need to hear on the subject of shared parenting.

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