January 6, 2014 by Robert Franklin, Esq.
The much-anticipated amendments to family law in the United Kingdom have now inched their way to the House of Lords. It is thought that, by the time the current crop of newborn babies has reached adulthood, something may have actually happened. I don’t want to cause over-excitement or promise something the British Parliament can’t deliver, but some day before the next Ice Age, we may see change.
If we do, it’ll only be under a microscope. That’s because it’ll require some sort of high-resolution optical device to actually discern the said change. “Incremental” isn’t the right word to describe the change that’s coming; “miniscule” might be closer to the mark.
When it comes to altering the chance that fathers might manage to get some sort of meaningful time with their children once Mom’s decided on divorce, the new law, if enacted as is, can be safely predicted to accomplish absolutely nothing. Oh, many commentators have made great claims for the new law. They’re much impressed by the fact that the bill requires judges to presume that involvement by a parent in a child’s life is in the child’s interest. Here’s the operative wording of the bill:
"(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare."
Assuming that wording actually becomes law, all who follow the strange workings of family courts will immediately notice a couple of stumbling blocks in the way of fathers actually seeing their children following divorce or separation. The first is the wording “unless the contrary is shown,” which of course can mean virtually anything. After all, what do parents who wish to have the children all to themselves do in child custody cases but attempt, by hook or crook, to demonstrate to the judge that allowing the other parent to see the child won’t be good for him or her.
They do that in the ways we all have come to know. Dad’s an abuser of the child, the mother, or someone else. Dad doesn’t care about the child, doesn’t do enough hands-on childcare, doesn’t know enough about the child’s schooling, medical condition, has insufficient diapering skills, etc., etc. The list is infinite and any or all of it can convince a judge that Dad shouldn’t see much of little Andy or Jenny. The point being that parents already routinely attempt to show the other’s unfitness; they do so now and will continue to once the law is passed, if it is.
In short, the new law will make little-to-no difference in the way parents approach custody issues or judges resolve them.
Of course the law contains the presumption that involvement is in the child’s interest. Legally, that means that, if Mom produces no evidence that Dad shouldn’t see the child, then he gets to. That is, the burden of proof is on the parent opposing the other parent’s right to see the child to produce evidence that the presumption has been rebutted. So surely that protects fathers, right?
I doubt it. After all, parents don’t go into court caring much about presumptions and burdens of proof. What they do is come into court with loads of mud to sling at the other parent, and that mud will still get slung regardless of whether the new law passes or not. And when it does, the judge will be able to use it to decide that Dad’s continuing involvement in the child’s life isn’t such a good idea after all. Bottom line: the presumption means next to nothing.
The second stumbling block to fathers’ real involvement in their children’s lives post-divorce is that very word, “involvement.” The bill says “involvement” by a parent in a child’s life is a good thing, but never gets around to defining the term. What is this “involvement” the law’s promoters are so enthusiastic about? Who knows? Is five months per year sufficient to be called “involvement?” Five weeks? Five days?
The bill offers no guidance whatsoever, leaving judges free to decide the matter for themselves. My guess is that the undefined term “involvement” will be all that’s necessary to allow judges to continue doing exactly what they’ve always done – removing fathers from their children’s lives. If Mom fails to produce sufficient evidence showing Dad’s continued involvement to be detrimental to the child, the judge can always simply order the usual “involvement,” i.e. about 14% of the time.
I strongly suspect that’s what will happen. I’d put good money on the proposition that this bill, if enacted into law, will produce precisely no change in custody orders. It certainly requires none; it doesn’t require judges to do one thing they’re not already doing. So why would we expect them to?
Some may argue that it’s the plain intention of the bill to make sure no fit parent is lost to a child simply by the operation of the law. But what we’ve long known is that there’s no reason for that to be happening now. Nothing in British law requires mothers to be 90% of custodial parents, fathers to be lost to children, mothers’ interference with access by fathers to go unpunished, etc. But that’s what happens.
Those things happen because family court judges and the various mental health and legal professionals that make their livings off the process routinely demonstrate the most shocking anti-father/pro-mother bias. We see this far too often to pretend that custody orders in the aggregate have anything to do with children’s welfare or the rights of fathers.
It is therefore incumbent upon any change to the law that truly seeks to alter the time children spend with their fathers to place requirements on judges that they do so. Anything short of that allows them to follow their existing instincts about children’s well-being which again is demonstrably anti-dad. Until the law imposes strict requirements on what one parent must prove to oust the other parent from a child’s life, things in family courts will continue as usual.
That means a presumption of equal parenting unless unfitness by one parent is proven by clear and convincing evidence.
The Cameron/Clegg government came into office claiming to care about children, family courts and fathers’ access to their kids post-divorce. The process by which it has gone about amending child custody laws amply demonstrates the opposite. The coalition government has burned much midnight oil, produced many reports and come up with the same old thing. Its bill is a prescription for the status quo.
Don’t believe me? Let’s wait a couple of years and see if anything has changed. If it has, I’ll be the first one to shout “Huzzah!” and be glad to do so.
But I don’t believe that’s the type of shouting I’ll be doing.
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