Saturday, August 22, 2009

Opposition to Equally Shared Parenting Bill in Canada Never Explains What's so Great about the Current System

August 22nd, 2009 by Robert Franklin, Esq.

As Glenn reported earlier, a bill to require the presumption of shared parenting in Canadian family courts has been introduced in that country's Parliament. It's been met with a considerable amount of disinformation from opponents. As in Australia, anything that even suggests an increase in the rights of a child to a relationship with his/her father is met with cries of alarm and outrage.

Some of that is principled concern about things like the practicalities of shared parenting. Would a six-month-old have to be shuttled weekly between households? Some people truly don't understand what a presumption of equally shared parenting means. If it would require courts to give equal access to violent, abusive or neglectful parents, they're understandably against it. Of course it would do no such thing, but plenty of perfectly well-intended people may not yet understand that.

So part of the opposition to a presumption of equally shared parenting is understandable. Proponents need to do a better job of educating people about what equally shared parenting is and what it's not.

A legal presumption is a rule of procedure for judges to follow. All it means is that if neither side to a dispute produces evidence against the presumption, the judge is obligated to follow the presumption.

The most commonly recognized legal presumption is surely the presumption of innocence in criminal cases. When a person is accused of criminal activity, he/she is protected by the presumption of innocence. Therefore, the prosecution is required to produce evidence to overcome the presumption, i.e. evidence of guilt. If the prosecution comes into court with no evidence, or insufficient evidence, of guilt, the judge is required by law to enter a judgment of not guilty and let the accused go free.

That's how a presumption works. It effectivley places the burden of proof on the side that opposes the presumption. If a presumption of shared parenting existed, it would place the burden of proof on whatever party to a custody proceeding opposed equally shared parenting. Certain things would be slam-dunk winners such as actual proof of violence, abuse or neglect. Others would be up to the judge to decide. Gradually, cases would make their way to appellate courts and a more complete jurisprudence on what would or would not be sufficient to overcome the presumption would take shape.

Articles like this one don't do much to help public understanding of the presumption of equally shared parenting (Winnipeg Sun, 8/20/09). My guess is that the writer doesn't have a good grasp of it herself. Her first paragraph makes equally shared parenting look like nothing more than an exercise in semantics.

Further down the page she says,

"Vellacott's bill may be well intended but no one's figured out how to make two ex-lovers who hate each other more than they love their kids compromise for everyone's benefit."

True enough. But of course the purpose of equally shared parenting is not, never has been and never will be altering the feelings of divorcing parents. If opponents demand that of equally shared parenting, they set the bar too high. And of course they set it higher than they do for the current system. After all, when was the last time you heard the current divorce and custody system criticized because it fails to make divorcing couples like each other and behave better?

Which brings me to a point I've raised before in discussing Australia's backtracking on equally shared parenting after less than three years. If people want to speak out against shared parenting, fine. But when they do, they should invariably be required to explain why, if equally shared parenting is so bad, the current system is preferable. The current system is awful, but if they don't propose an alternative, that's what they're arguing for when they oppose equal parenting.

People who oppose equally shared parenting need to fill us in on why it's OK, given all we know about the value of fathers to children, to separate the two. We know from mountains of social science accumulated by a vast array of researchers in countless different ways, in many different cultures, that children with actively-involved fathers do better than those without. We know that children, mothers, fathers and society generally benefit from father invovlement with children.

We also know that the current system in the United States "awards" primary custody to mothers in 84% of cases (U.S. Census Bureau). We also know that, in the vast majority of cases, non-custodial parents (mothers and fathers both), tend to become non-parents in that capacity. They tend to recede from their children's lives and become "Disneyland parents." (Journal of Family Issues, Susan Stewart, Iowa State University) That is precisely the opposite of what we should be trying to accomplish.

Finally, we also know that the single factor that overwhelms all the others in explaining why 70% of divorces are filed by women is child custody. Women know to a virtual certainty that they'll get the kids in a divorce; men know they'll lose them. Men don't want that, so they tend not to file for divorce (Brinig & Allen, American Law and Economics Review, 2000). In states that have enacted joint custody, the divorce rate dropped immediately afterward. So the presumption of equally shared parenting would likely have the additional benefit of cutting the divorce rate.

But again, the next time you hear or read someone opposing equally shared parenting, ask him/her what he/she likes so much about the current system

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The work of Fathers 4 Justice and the Pain of Fathers ~ Activism in the UK

Equal and Shared Parenting ~ The Movie