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Debate fires up over presumption of joint custody

|Written By Judy Van Rhijn

A fundamental change to the very basis on which post-separation parenting is viewed is being urged by some members of the legal and mental-health professions while others fiercely oppose the idea.

‘Generally, there is a parent and an assistant parent. How does a judge make those two positions coincide?’ says Kristen Bucci.

In fact, the introduction of a presumption of continued joint custody after separation is a measure that provokes strong opinions on both sides of the argument. Garry Wise of Wise Law Office in Toronto says that bringing in a presumption of joint custody would be an “across-the-board” approach to family law reform that would reduce the number of cases coming before the courts.

“This would be the biggest solution of all. What we do not have is a legally sanctioned culture of joint parenting at the federal level under the Divorce Act or the provincial level. We have an anachronism of a custody/access-based system that evolved one or more generation ago when one parent was at home and one parent was working.

Almost all families now do the parenting together, and we have an arbitrary, artificial concept of best interests of the children that is so pliable and subjective that you can read it every which way.”

With a presumption in place, Wise says the first message couples would get from courts and legal practitioners is the expectation of shared parenting.

“The discussion would begin differently. It would set the stage for more cases to settle in a way the parties themselves feel is appropriate and equitable. With that culture combined with mandatory mediation where the parties narrow the issues and resolve more issues that affect the ability of the parties to parent, we’d be well on the way to forging a new culture after separation.”

Wise compares the idea to the introduction of the child-support guidelines. “It was unfair to certain parties and fair to others but it established a new status quo and took almost all the cases off the table. I’d propose something equally radical.”

The issue was given an airing in a lively debate at the Association of Family and Conciliation Courts Ontario conference in October. Edward Kruk, an associate professor with the school of social work and family studies at the University of British Columbia, presented the case for a rebuttable presumption of equal or shared parenting responsibilities, with the opposite view being given by lawyer Martha McCarthy.

Kruk has become one of the most vocal supporters of a presumption and favours a transition from shared parenting in a two-parent household to shared parenting in two different households. Kruk believes the “winner-take-all” adversarial approach through sole custody isn’t working for either children or parents and that change is urgently needed.

His numerous papers emphasize the negative effects on children with absent fathers and the positive impacts on children of shared custody arrangements compared to sole custody situations. He also notes there’s decreasing parental conflict in joint custody families as compared to an increase of such problems over time in sole custody families.

In his presentation, he varied his basic proposal for a presumption by coupling it with a rebuttable presumption against shared custody in cases of family violence and abuse, as proposed by the National Association of Women and the Law.

His published opinions say this would apply in proven cases involving a criminal conviction in a matter directly affecting the parenting of the children or a finding of a child in need of protection by a child welfare authority. Kruk proposes that the much more stringent standard of child in need of protection be applied before removing a parent’s legal custody rather than the test that looks to the best interests of the child.

Wise is in favour of putting the onus to prove that a presumption is inappropriate on the spouse who doesn’t agree. “If legislation said the starting point is joint custody, and the onus is on the parties to provide evidence that a different arrangement is in the best interests of the children, it would be difficult for a parent to ever satisfy that,” he says.

This is precisely what worries Toronto lawyer and mediator Barbara Landau, who was present at the debate and strongly disagrees with the proposal. “Where there is an onus, it is often on the victimized party to disprove it,” she says. “It makes for a potentially much more adversarial situation. If a parent thinks a situation is inappropriate for a shared arrangement, they have to go to court and argue against it.”

Landau believes there’s a lack of understanding of the difference between joint legal custody, where parties agree to consult with each other on significant decisions, and joint physical custody, which involves having the children 50 per cent of the time.

This is echoed by other practitioners. Jane Murray of Burke-Robertson LLP in Ottawa is concerned about the various interpretations of joint custody.

“There would have to be a clear definition of exactly what you’re presuming or there would be a lot of litigation around the definition,” she says, noting she believes a presumption is unnecessary. “There is already a direction in the Divorce Act that one of the factors be maximizing the child’s time with each parent.”

Lawyer Kristen Bucci of Zochodne Bucci in Thunder Bay, Ont., isn’t in favour of true joint custody, which she defines as joint decision-making. In her experience, it works only in rare cases. “At the point of separation, there is a lot of animosity. You need two people to talk calmly, rationally, and in the best interests of the child, and that rarely happens in real life.”

With respect to shared physical custody, Landau finds it’s rare that people come up with a plan for 50-per-cent sharing of physical custody. “You need geographic proximity because the children attend school and have friends in the neighbourhood.

You need co-ordination and you need availability. People must have jobs that allow them to be available to have the children that much. I see people who have to be at work from 7 a.m. to 7 p.m. Their plan is to leave the children with a caregiver when the other parent is at home.”

Landau adds: “You also have to consider the stage of development and temperament of the child. Do the children take to change easily or do they suffer anxiety over the smallest changes? There is a need for stability, security, and a reasonable routine.”

Landau also stresses the need to look at the parenting connection before the separation. “Some parents who are asking for 50 per cent have never looked after the child on their own except for maybe 20 minutes while someone went to the 7-Eleven. You need to build up the child’s comfort and confidence.”

Landau also stresses that the level of communication between the parents needs to be respectful so the children aren’t travelling back and forth between war zones.

Bucci, meanwhile, believes parents need to prove they were equally involved in parenting prior to separation. “One partner says, ‘Yes, I was absolutely equally involved.’

The other partner says, ‘Absolutely not. I did the majority of the decision-making.’ Generally, there is a parent and an assistant parent. How does a judge make those two positions coincide?”

Bucci, in fact, finds a lot of litigants get very hung up on a particular label. “So many parents want joint custody but are not really prepared to put in the work.”

Landau places the blame for this situation squarely at the feet of the child-support guidelines. “The question of equal time is contaminated by the supposed 40-per-cent rule of child support. Virtually every man wants 40 per cent of the time in the mistaken belief that they won’t have to pay child support.

I call it the faint-hope clause. If you took away the 40-per-cent rule, there would be a lot less fights over the percentage of time.”

Landau believes most cases start with a presumption that it’s in the child’s best interests to have a full relationship with both parents in any case. “A judge has an overriding responsibility to deal with each case in an individualized way, and that doesn’t preclude joint physical or joint legal custody.”

Comments are no longer being accepted for this article.

  • Amy

    Amy Miller
    This needs to be looked at on a case by case basis. There are many many children that can't handle the upset of being shifted between two homes constantly and never having a real place they can call home. For sensitive anxiety prone children this should never be recommended. The courts never look at this fact and its ad.
  • Men who hit women
    What if a woman was a stay at home mom, cared for the kids 24/7 at the instruction of her husband, he injured her so badly that she almost died, so rightly so she left....but then he wants custody? Hmm. No child support? Why not? Especially if he was charged - looks very very suspicious.

    Sorry. Times up for wife beaters.

    Shared parenting YES - if both parents have been involved. If one is a stay at home parent? That was the arrangement before so why after does the non-involved parent suddenly care and deprive his likely now-poor spouse from the ability to financially care for the child(ren)? - clothes, medicine, shoes, haircuts, living - are expensive.

    If there is evidence - pictures, drs notes, admissions, etc, no shared parenting. You don't get to beat the sh*t out of the mother of your kids and then get the kids lol!

    I think it looks like abusive men are see-through if the do the above. It's just really see-through
  • Amanda Dean
    The reality is that often both parents are not equally commitment to the responsibilities of joint parenting. Often one of the parents in an other relationship where the child is either not wanted or considered an obstruction to their relationship or one or either of the parent's spend all their time working or traveling or involved in other interests. It is the commitment level of the parent that should be assessed and their consistency, as well as their good character. People assume the unequivocal right to bear children and to have access to them where that very assumption invalidates the rights and freedoms of those children. Children have a right to responsible, committed and loving parents and that should be the measure of access in these debates.
  • Andrea Lynn
    It's interesting that 99% of the respondents here are men. It seems bizarre to me that people think a father shouldn't pay child custody when what is not considered is the incredible amount of money,time, energy and strength required to raise a child.
  • Lyuda
    I read one disscussion forum were adults were sharing their own stories being a children of divorce families and the one who lived visitation... None of them said it was great... None... What is beneficial for child when he doesnt know where is his home? He onlyknows theres moms house or dads house... People just so selfish that nobody can admit there is bond between mother and child and it is very important to keep this bond.
  • Tan
    "People just so selfish that nobody can admit there is bond between mother and child and it is very important to keep this bond." - Lyuda

    Is it important to keep the bond of the father and the child too then?
  • Harold
    Maybe, what needs to happen for people to start taking fathers seriously, is for them to stop paying. Would we do more good for our sons by refusing to play in this system at all?
  • Shared Custody

    Paul M. Clements
    In 25 years as a child and family advocate, I have NEVER seen a reputable study which didn't recommend shared physical custody as being in the best interests of the child.
    But all that research is ignored in favor of the money that can be had by separating dad from his children. Lawyers make money, courts make money, mothers make money, counselors, GAL's, psychologists and psychiatrists all make money from divorce and custody battle. Shared custody reduces re-litigation by 50%. So between the lawyers and the mothers, who profit from a government sponsored "REDISTRIBUTION OF WEALTH" scheme called euphemistically, "CHILD SUPPORT", the opposition to what's provably in the best interests of the children, is fierce.
  • Equal parenting is not only the right thing to do

    Mike murphy
    Equal parenting should be the standard for parents in a post marriage situation. Forms of shared custody currently exist in Belgium - the most stringent, where withholding access of a child by a parent to the other parent could be considered kidnapping, Australia, Denmark, Sweden, France, Italy, the Netherlands (2009), and Germany currently uses a method called the Cochem Court-Practice model.

    In the USA many States have shared parenting laws including Deleware, DC, Florida, Idaho, Louisiana, Montana, New Mexico, and Texas.

    The following are some of the best relevant statutes from states which provide a strong preference for joint custody:
    • ALASKA
    • KANSAS

    The following two states have case law which make joint custody a preference:

    Minnesota and Massachusetts have shared Parenting bills before the legislature looking at 50-50 as the start point.

    Social science clearly shows it is in the best interest of children to have both fit parents in their lives on an ongoing basis after Divorce.
  • Debate fires up over presumption of joint custody

    Mark Bogan
    Belgium has adopted a presumption of equal parenting. E.P. For years, that position has remained status quo for Belguim citizens. No person is complaining and the children are doing fine. The judges, lawyers, clinical investors, social workers and other stakeholders within their divorce industry have moved on with their lives. More than fifty percent of U.S. states have changed their statutes supporting a presumption of joint or equal parenting. No person is complaining and the children are doing just fine. The judges, lawyers, clinical investigators, social workers and other stakeholders within the divorce industry have moved on with their lives.

    Howeve, the Law Times draws the same old complaints from the same old people year after year. Whenever someone mentions about how family justice is administered or interpreted within Canada, stakeholders within the Law Times start complaining. Having been through the system for eighteen years within three Canadian jurisdictions, please let me and my families know how it is within the best interest of our kids to live out their biological lives without every really loving or knowing us. Quite frankly our story sounds like a broken record within Canada and so does this article.

    Support a presumption of equal parenting and mandated mediation then move with your lives.

    Yours truly,

    Mark Bogan
    Yellowknife, NT
  • Assistant Parent - a bogus idea?

    edward kruk
    Thank you for your article on this important debate.

    I would like to comment on Barbara Landau's comments, as I admire her book on family mediation.

    I am concerned about Barbara's comments on two counts. First, the gender paradigm that dominates her thinking about the needs of families of divorce. It is less inclusive of a male / father perspective than it could be.

    Second, I am somewhat alarmed by the sentiment or assumption that fathers seek joint physical custody to avoid paying child support payments. There is no empirical evidence that this is the case.

    Finally, again the evidence points to a "gender convergence" of child care responsibilities. Children generally have two parents that are salient to them, and a parent is a parent, not an "assistant parent."

    Many thanks,

    Edward Kruk
  • Daily proof Moderato
    Indeed, the outcome of many an abusive and il-conceived case can be found in the Australian Single Mother Forum ( Multitudes of abusive fathers are gaining full custody from mothers that attempted to escape domestic violence, and so many forum references are made to fathers that go for shared parenting to reduce or elliminate child support, who then hand their kids off to their mother to parent - this is brought up by the effected children's mothers again and again in our forums. Countless Australian children are living in fear of an abusive dad with no mum their to protect them any more - it's a terrible system at the moment - at least for the kids and protective mums.
  • Australian Abuse Statistics

    Mike Murphy
    I have seen many of your type of comments before and they amount to drive by smears of men with no consequential scientific links. The site you show is replete with inaccuracies and bias.

    You may not know mom is the most likely to kill or maltreat her children in OZ and it goes higher when she involves her boyfriend or new partner. You can check the scientific evidence here for the USA and Australia.
  • Ted Wakefield
    From the lay perspective, it seems both sides may be missing the point. What is the objective here?
    Let’s say it’s to keep families functioning and indeed the very institution of family alive, and case loads down.
    You can tinker with presumptive this and the onus of that, but if the perception persists, real or imagined, that fathers are undervalued in family law, then you will have failed.
    As a married father (first time) I can testify that this perception is literally encouraging divorce. Why would any rational woman hesitate to divorce when the perks are so high?
    Why would she muddle through those dicey years of early childhood when funds are low, exhaustion is rampant and nerves are frayed because the needs of the children come before the real material and emotional needs of the parents?
    The old stigma of single motherhood is gone. She is a hero now, and her social status and access to all manner of support structures is instantly increased upon divorce.
    Why would any rational woman fail to divorce her husband at the first opportunity? And further, why would any rational man get married in the first place?
    It certainly does not surprise me that defenders of the status quo litter their arguments with the memes of modern feminism, but it does surprise me that deeper thinkers, concerned about the future of the family and the social cohesion of the country are not more bravely and vigorously debunking that position.
    Simply put, the stakes in an inter-marital disagreement are nowhere near approximate, and this is destroying families for no good reason. Make husband and wife more equal within the marriage by making them equal after a marriage, and watch the health of the entire society improve. There’s gotta be votes in that.
  • anonymouse
    Ted you are way ahead of the curve. Unfortunately changing the social paradigm threatens the "flat earth", and the financial well being of many practitioners who's interests lie in propagating the disparity. Equality as an altruist is one thing, equality in the division of tangibles is another.
  • Why isnt this already in place.

    Everyone wants this.

    Children deserve it.

    Children need it.

    Domestic Violence is not a viable argument against it... that is a distraction. There are laws for assault.

    Statistically children are better off with 2 parents... under one roof or two.
  • Rob
    "Domestic violence is not a viable arguement it"

    I totally agree statistically (if people want to think this way) children are abused and even killed by women more then they are with men. Then statistically one would think children end up with their fathers more ofthen then not but that is not something that we see here.Men are always seen as bad and purpetrators of these acts reguardless to what statistics say.
  • Equal Shared Paenting

    Ed Ward, MD
    Both parents have equal rights to their children, just as a child has equal right to both parents. But, there always seems to be a reason to deny equality, natural law and basic family rights for some, especially when there is money in involved.

    The destruction of family rights of children and parent is a crime against humanity.

    Ed Ward, MD
  • Mr

    Jeremy Swanson
    Good Stuff. Well Said. Who Are You Ed Ward?
  • Charles Pragnell
    Shared Parenting of the type being promoted here, was introduced into Australia and within two years the Australian government ordered a number of reviews of its workings. This was prompted by widespreqd reports that children were suffering harm and even death, as a consequence of being ordered into the custody or contact with toxic and dangerous parents. Even where parents agreed on a shared parenting arrangments it has often been greatly to the distress and disadvantage of children, as they have become PingPongs shuttled from one place to another on a weekly basis and living out of suitcases.
    The entire concept of `Shared' custody is disrespectful of children and their rights and treats them as mere possessions, to be shared out as parents or Courts may choose to determine. A 19th Century approach.
    Any new laws should be child-centred with a clear focus on the Neeeds, Wishes, and Rights of each child who may be involved and that parent's `Rights' should be secondary to such considerations.
  • Yuri Joakimidis
    What we saw in Australia was not the failure of joint physical custody but the latest round in a political struggle that is analogous to a painfull and pointless court room squabble between husband and wife.

    Even now, the shared parenting detractors have essentially nothing beyond spurious anecdotes to back up their claim.

    As to the wishes of children studies document that equal time parenting is what most children want.
  • Mike Murphy
    Can we then assume that during marriage shared parenting by mom and dad is also disrespectful of children and they are mere "possessions" or does this suddenly change post marriage and one parent is decidedly unequal.

    Your argument is flawed with unattributable anecdotal comments. Please provide the proof of your assertions.
  • Don Desaulniers
    It has been my long-held opinion that flat fees for family law matters would solve most of the cost and time problems. Custody fights would resolve themselves quickly if the lawyers were not each charging hourly rates.
    Flat fees have kept real estate law virtually court-fight free, and I'm sure the same would apply to family matters.
    Unfortunately for family law lawyers, it would mean much lower total fees.
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