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May 9, 2014 by Robert Franklin, Esq.

More and more, critics of the family law system are dropping rhetorical niceties and telling it like it is. More and more, they’re doing it in the mainstream news media. And more and more, enemies of fathers and children maintaining real ties with each other post-divorce have nothing to say in response.

Here’s Canadian Grant Brown, author of the new book, Ideology and Dysfunction in Family Law: How Courts are Disenfranchising Fathers, writing in the National Post. I can’t tell it any better than Brown does, so I won’t try.

Canadian judges are very powerful. In fact, our constitution gives judges power over all branches of government. And, they take pride in rooting out perceived inequality pursuant to s. 15 of the Charter of Rights and Freedoms.

Ironically, though, the courts themselves are a bastion of widespread, systemic discrimination when it comes to one particular group of people: dads.

There have been tremendous societal changes in the realm of gender roles in recent history. Whereas 100 years ago women rarely held outside employment, this is now the norm.

Men’s roles have changed almost as dramatically. Fathers’ involvement with their children has been on the rise for a couple of generations. Whereas stay-at-home dads were unheard of 100 years ago, today they are not uncommon. Among dual-income families, fathers now undertake virtually the same number of hours of hands-on childcare as mothers.

Yet judicial outcomes do not reflect these trends. The proportion of mothers obtaining primary physical custody of the children upon separation is virtually unchanged from Edwardian times. A recent analysis of the Central Divorce Registry by Paul Millar shows that mothers are 27 times as likely as fathers to obtain sole custody of the children.

Joint guardianship — the equal right to make decisions on behalf of the child — has become the norm in adjudicated custody disputes. But primary physical custody remains almost the exclusive preserve of mothers.

After an exhaustive analysis of the National Longitudinal Survey of Children and Youth, Millar shows that children from single-father homes fare no worse than, and in some respects better than, children from single-mother homes. He concludes that there is a “disconnect” between what judges purport to be doing — making decisions that are in the best interests of the child — and what actually plays out in the court room.

A disconnect? You bet there is. It’s the one I’ve been kvetching about for years — family court judges aren’t educated in the science of children’s welfare. They don’t know the basics and don’t seem inclined to learn them. If they knew that children’s well-being is optimized by having meaningful relationships with both parents, don’t you think judges would have long ago stopped awarding sole and primary custody to mothers in 90% of cases? After all, throughout the English-speaking world and elsewhere, the bedrock principle on which all child custody cases rests is “the best interests of the child.” So it’s one of the most outrageous of ironies that judges for the most part don’t know the first thing about that very concept.

Judicial prejudice against fathers shows up in Millar’s analyses. Judges go to extreme lengths to rule in favour of mothers, often ignoring or twisting facts to achieve preconceived results. Nobody can read the inquiry into the death of Newfoundland baby Zachary Turner, killed by his mother when barely one year old, and not see the willful blindness of the legal system to the mother’s faults in that tragedy.

Indeed, that willful blindness was made all too clear in the investigative report that followed Zachary’s death. Here’s an article about that (CBC, 10/4/06). And here’s what I wrote back then (Glenn Sacks.com, 3/8/09). From the CBC article:

"The fact that a whole organization could be so out of touch with the reality everyone else was wondering about is baffling," [Darlene Neville, Newfoundland and Labrador's child and youth advocate] told reporters.

Neville said two things were evident from reading the report. "One: Zachary Turner's death was preventable. And two: Zachary was in his mother's care when he should not have been."

"Given the amount of resources that were put in to meeting Dr. Shirley Turner's needs and demands, and what she identified as necessary, if those same resources had been taken and put in to assessing what Zachary's needs were and how could his rights would be best protected, I would suggest there would be a strong likelihood we would have had a different outcome," Neville said.

Neville may have been baffled, but we aren’t, and neither is Brown. The province’s child welfare system had the same pro-mother bias the courts do. In Zachary’s case, that bias blinded caseworkers to everything but Shirley Turner’s needs. Keep in mind that those were people whose job it was to protect children, not their parents. But they did the opposite and a child died because of it.

Brown gets it right.

Family law has become so illogical that it is possible to find a precedent for nearly any proposition that favours the mother, even when it makes no sense. There are no principled decisions, unless you count the consistent finding that make fathers pay the costs of the separation and childcare.

Even at the highest level, logic and consistency are elusive. The Supreme Court of Canada has ruled that mothers have a constitutional right to the custody over their children and fathers have no rights at all — only obligations. A father’s most important contribution is to pay child support.

To look closely at the family law system is to court psychosis. As Brown says, it makes no sense. It makes no sense to say you’re acting in the best interests of children and marginalize fathers at every turn. It makes no sense to say you’re acting in the best interests of children but not know the first thing about what that consists of. It makes no sense to pretend to act equitably but give custody to mothers 90% of the time. It makes no sense to admit that fathers whose visitation is not obstructed are more likely to pay child support and then allow mothers to obstruct fathers’ access. It makes no sense that there are far more children needing adoption than there are parents to adopt and then force adoption on children with fit fathers begging to be allowed to care for them. It makes no sense to say how important child support is to children and then put fathers who can’t pay in prison where they can’t earn.

It makes no sense, but that’s what happens in family courts every day of the year. It’s been going on for decades, but still judges make their pronouncements as if the whole thing weren’t a charade. Trying to rationalize the irrational can make a person crazy.

Brown says that there’s a precedent for almost any proposition as long as it favors mothers. Remember Scott Ritchie? He’s the Michigan father who, with the agreement of his wife, quit his job and stayed home to raise their son. He did so from the day the boy was born until he was six and started school. That was their agreement and Scott stuck to it. By all accounts, he was a fine and loving father who raised a fine little boy.

But when his wife walked out on him, having taken little part in the boy’s upbringing save for paying the bills, the Michigan court did what it always does — gave custody to her. Scott and his wife reversed the usual sex roles — she was the earner, he was the hands-on parent — but the result was the same. She got custody. Bias doesn’t get much clearer than that, but, just in case we missed it, the Referee in the case made sure by stating in open court that, in future, he’d have to “stop just automatically giving custody to the mother.” Not in the Ritchie case of course, but sometime later. In rubberstamping that blatantly sexist position, the judge gave great weight to the fact that his wife earned more than Scott did and therefore should have custody. Imagine if that logic were used in every case; we’d have 90% paternal custody, but of course it’s not. That logic only applies when it’s Mom who earns more.

The anti-male stereotypes in the minds of judges are exacerbated by the adversarial legal system which pits parents against each other instead of giving them incentives to co-operate in the best interests of the child. Judges don’t even ask the right question. Instead of trying to decipher who is the better parent, through the fog of prejudice-filtered litigation, judges should be asking, “How can we best maintain the child’s relationships with the significant people in his or her life?” All reputable social science shows that children are better off having maximal contact with both of their parents.

Fifteen years ago, a joint committee of Parliament, after a lengthy consultation process, recommended changing the divorce law to equal shared parenting. That recommendation is still favoured by a large majority of Canadians. It is long overdue.

Fortunately there’s a bill before the Parliament that would fix a lot of what ails both the Canadian family law system and the children of Canada. I’ll post a piece about that next time.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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