UK Family Law Reform

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Joint custody ain't what it used to be.

National Post Published: Saturday, July 19, 2008.

Re: Give Dad a Chance, Barbara Kay, July 18.

Barbara Kay has done a great job of summarizing many of the issues facing divorcing but involved fathers in the courts. I did want, however, to point to one small technical point.

In Canada "joint custody" is awarded almost as frequently as sole maternal custody in overall cases -- litigated or not. However, the point should be understood that in Canada joint custody means very little, and nothing close to what it meant 20 years ago. Now, joint custody gives a parent neither the right to be involved in decisions regarding the children, nor even the right to see their children. The courts have created, and the government has recognized, something called "joint custody with primary residence to x," which is really "sole custody to x."

In litigation, if one parent disagrees with anything, judges are trained not to award joint custody. However, judges do make more joint custody awards now that the term joint custody means nothing when qualified with residency. But the words mask the reality that in almost all the cases it is the equivalent of sole maternal custody.

B. Jenkins, Mississauga, Ont.

http://www.barbarakay.ca/articles/view/55

Barbara Kay on The Legal System's Motherly Bias: Give dad a chance

July 18, 2008, by NP Editor

Barbara Kay

In the 1979 movie Kramer vs. Kramer, a New York mother bored with child care bolts to Los Angeles “to find herself,” leaving her husband suddenly in sole charge of their little son.

The heart of the movie is the riveting evolution of a patriarchy-era father — career-obsessed, domestically disengaged — into a New Man: putting career ambitions second to his child’s needs, parenting clumsily and frantically at first, but eventually with tender efficiency.

Not without realistic missteps and emotional pain along the way, they form a loving bond. The child is happy. Nevertheless, when the mother swoops back into town 18 months later and sues for custody, a patriarchy-era court ignores the dad’s obviously superior moral claim — and the child’s wishes — awarding the mom custody on the basis of her gender.

Thirty years later, New Men are the norm in bourgeois society. But the instinct to privilege the mother-child nexus, ironically a dominant feature of both the sentimentalist patriarchy and today’s feminist-dominated family law, continues to rule in family court.

As many New Men are shocked to learn, all the midnight feedings, bedtime stories and soothing Band-Aid applications to scraped knees count for nothing against morally indefensible gender bias in family court: In 90% of litigated custody cases, the mother gains sole custody.

Thus, with mom-friendly courts always the trump card up a mother’s sleeve, even the best of fathers in all custody negotiations must depend on the mother’s good will, rather than justice for anything approaching equal access to his children.

In 1997, when the current Divorce Act came into effect, a special joint committee was convened to make recommendations on child custody and access. After 55 hearings and more than a year of study, the 48 recommendations of the 1998 report, For the Sake of the Children, converged on one theme: The sole-custody adversarial system, as it pertains to the majority of custody and access disputes, denies children and non-custodial parents basic human rights, and puts children’s psychological and emotional health at risk.

The report recommended the “non-rebuttable presumption” of equal parenting (in the absence of abuse) as both fair to parents and best for children. But it was ignored by the then-Liberal government and fell into a political black hole.

We know what Canadians think on this issue: Polls show that 80% of Canadians support equal parenting. We will know the present government’s frame of mind when Saskatoon-Wanuskewin MP Maurice Vellacott’s Motion M-483 in support of equal parenting comes up for debate in Parliament this fall.

A hopeful sign: On June 19, the Northwest Territories passed a supportive motion for Vellacott’s initiative with a vote of 11 to zero (with seven abstentions).

Vellacott has lined up 17 of a necessary 20 seconders to his motion and feels optimistic about its reception: “The social science is air-tight on the importance of fathers and mothers in the whole range of life experience as [children] grow older.”

He is correct about the social science. In a September, 2007, policy paper, University of British Columbia sociology professor Edward Kruk, Canada’s foremost expert on custody, adduced a wealth of peer-reviewed data to support the superior effects of “shared parental responsibility.”

Yet, as he observes, judges in family courts tend to perpetuate old stereotypes, ignoring evidence in cases where the father is provably the more responsible caregiver, or presuming fathers only seek sole custody to evade financial responsibility.

Under mounting critical scrutiny in recent years, the judiciary’s lack of expertise in determining the “best interests of the child” has become increasingly apparent. As a result, a new parental “responsibility-to-needs” discourse has emerged in the socio-legal realm.

A child’s “needs” cannot be optimally met by a single parent, however loving. Kruk’s findings show that a child must spend at least 40% of his time with a parent to establish and maintain a beneficial attachment.

Kramer vs. Kramer ended happily, with the mother’s recognition that fairness to the child required voluntary relinquishment of her legal entitlement.

Unfortunately, Hollywood is not running the divorce industry in Canada. In real life, mothers are rarely so selfless; court-battle endings are rarely so happy for fathers and children.

In 2006, Stephen Harper’s electoral platform promised to implement “a presumption of shared parental responsibility, unless determined to be not in the best interests of the child,” with mediation as an alternate method of conflict resolution.

Campaign talk is cheap. When can divorced Canadian fathers — and their children — expect justice, so long demanded, so long promised and so long deferred?

bkay@videotron.ca

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