August 3, 2014 by Robert Franklin, Esq.
The First International Conference on Shared Parenting was held recently in Bonn, Germany and the National Parents Organization’s own Ned Holstein not only attended but was one of the driving forces behind the conference. The excellent Dr. Edward Kruk was there as well and here’s his article on what happened (Psychology Today, 7/28/14).
The theme of the Council's first annual conference was, “Bridging the Gap between Empirical Evidence and Socio-Legal Practice,” and it drew delegates from over twenty countries to Bonn, Germany, from the scientific, family profession and civil society sectors.
Good. It’s about time. I’ve been writing for years on the radical and dysfunctional disconnect between what social science says about children’s well-being post-divorce and what courts actually do in custody cases. The simple truth is that, although they invariably intone the mantra of the “best interests of the child,” judges actually know little-to-nothing about what actually helps promote those interests and routinely issue orders that do the opposite. Of course they often find themselves hamstrung by state or national laws that all but require them to pick a parent to whom to give sole or primary custody. So state and national legislatures could use some good reading material themselves.
The very idea that a court must, in all but the rarest of cases, choose one fit, loving parent over another borders on the insane. Time and again we see judges splitting the finest of hairs and all for the purpose of removing one parent from a child’s life. So perhaps Dad spent more time at the office or the plant than did Mom. Presto! He’s whisked out of his child’s life for all but 14% - 20% of the time for the sin of earning the money to support little Andy or Jenny and, to a great extent, his wife. Never mind that the child long ago formed the most basic attachment any human can to his father. Never mind that the judge’s order converting Dad from a father into an occasional visitor tears that bond asunder and traumatizes the child. No, the law says one parent must win and the other lose and the fact that the child loses too is an inconvenience we prefer not to look at.
Kruk describes six different areas of consensus the Conference reached.
1. There is a consensus that neither the discretionary best interests of the child standard nor sole custody or primary residence orders are serving the needs of children and families of divorce. There is a consensus that shared parenting is a viable post-divorce parenting arrangement that is optimal to child development and well-being, including for children of high conflict parents. The amount of shared parenting time necessary to achieve child well being and positive outcomes is a minimum of one-third time with each parent, with additional benefits accruing up to and including equal (50-50) parenting time, including both weekday (routine) and weekend (leisure) time.
2. There is consensus that "shared parenting" be defined as encompassing both shared parental authority (decision-making) and shared parental responsibility for the day-to-day upbringing and welfare of children, between fathers and mothers, in keeping with children's age and stage of development. Thus "shared parenting" is defined as, "the assumption of shared responsibilities and presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together and apart."
3. There is a consensus that national family law should at least include the possibility to give shared parenting orders, even if one parent opposes it. There is a consensus that shared parenting is in line with constitutional rights in many countries and with international human rights, namely the right of children to be raised by both of their parents.
4. There is a consensus that the following principles should guide the legal determination of parenting after divorce: (1) shared parenting as an optimal arrangement for the majority of children of divorce, and in their best interests. (2) parental autonomy and self-determination. (3) limitation of judicial discretion in regard to the best interests of children.
5. There is a consensus that the above apply to the majority of children and families, including high conflict families, but not to situations of substantiated family violence and child abuse. There is a consensus that the priority for further research on shared parenting should focus on the intersection of child custody and family violence, including child maltreatment in all its forms, including parental alienation.
6. There is a consensus that an accessible network of family relationship centres that offer family mediation and other relevant support services are critical in the establishment of a legal presumption of shared parenting, and vital to the success of shared parenting arrangements.
Those are mostly self-explanatory and, given decades of social science on parenting and children’s welfare, non-controversial. However, the matter of family violence and child abuse must be expanded on. The idea that shared parenting shouldn’t be ordered in any situation in which there’s been any substantiation of domestic violence or child abuse is a dangerous and slippery slope. That’s true for a number of reasons.
First and most important, definitions of violence and abuse have become broader by the year to the point that now essentially anything can qualify. Did Mom yell at Dad? That’s abuse and if she did it more than once or twice, it’s a pattern of abuse. If that’s substantiated in court, should it mean that little Andy or Jenny no longer gets to see his/her mother, or, if there’s contact, that it’s severely limited? Did Daddy spank little Andy? Does that mean Andy’s relationship with his father should be curtailed to the 14% - 20% range?
The point should be clear. We’ve so broadly defined violence and abuse that, if those become per se exceptions to a presumption of shared parenting, we may as well not have the presumption. The fact is that conflict occurs in families and some of it falls squarely within those absurdly broad definitions. Yes, data out of Nebraska suggest that the issues are rarely raised in custody cases, but that may well be because now there’s nothing to be gained by doing so. Mom knows she’ll get custody and Dad knows that, in order for him to do so, he’ll have to plead and prove extreme abuse by her in order to get custody. That sort of abuse rarely occurs and besides, how can he prove it?
But what might happen if a presumption of equal parenting, with an exception for violence and abuse, were to be enacted into law? It may well be that allegations thereof would spike and the presumption be nullified in a high number of cases.
The point is that, while true cases of extreme violence or abuse clearly warrant restricting a parent’s access to a child, the overwhelming majority of what we’ve chosen to call violence or abuse aren’t important to deciding custody and shouldn’t be used to thwart equal parenting.
Another issue arises when both parents are demonstrated to be somewhat abusive or violent. Again, those overly broad definitions apply, so perhaps both Mom and Dad scream at each other from time to time. Maybe they push or shove each other on occasion. Possibly each has spanked the child. Should both lose custody? Should the child go to foster care? In the case of minor and occasional behavior that’s technically defined as abusive, surely the answer is “no.” But if both parents aren’t to lose custody for that type of behavior, why should one?
The core principle of shared custody is the enormous value of parent-child relationships to the child. Little Andy or Jenny attached to both parents and that attachment should be severed only in the most extreme cases. Always — always — judges must look at the harm done to the child by damaging or destroying that attachment and only do so when it’s clear that the damage done by maintaining the relationship outweighs the damage done by removing it. In cases of minor and occasional abuse (again, defined broadly) it’s likely the relationship, the child’s attachment to its parent, is too valuable to lose.
So to establish a per se exception to shared parenting in all cases in which some minor form of abuse is found, is both unnecessary and dangerous for children. Given that “abuse” is now defined to include virtually any parental behavior that’s less than optimal, we simply can’t sacrifice the ideal of shared parenting on that altar.
The sensible thing would be to either define violence and abuse more rationally, to include truly destructive or dangerous behavior, but not everyday actions that shouldn’t be used to destroy the most important relationships a child has. But failing more sensible definitions, courts should be attuned to what is and what isn’t the type of parental behavior that should sever parent-child bonds. Clearly, some abuse warrants exactly that, but much of what we’re now pleased to call abuse does not.
We should not give opponents of shared parenting such an easy ‘out.’
National Parents Organization is a Shared Parenting Organization
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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