Ideas rest on enthusiasm…in reality they rest on perseverance – Goethe

It’s an understatement to say that there are many points of view in divorce, certainly it’s a volatile issue. As a result the starting point needs to shift to a position of presumed equal parenting. The custody/access model  is a judicial reflex based on tradition, based on the construct that women are genetically predisposed to be best suited for child rearing. Parenting is a biological function – for mothers and fathers. But there is a gradual awakening that empowered men and women can change society. The family court system needs to be jolted out of the neolithic legacy where women stayed home to tend the fire and look after the progeny while the men went out and brought home food.

Child development research studies continually, and unsurprisingly report that, “[…] children with highly involved parents had enhanced social functioning and fewer behaviour problems.” Yet tabled legislation has continually failed to zap outdated family law traditions back to the stone age where they belong. The custody /access model perpetuates the suffering of broken families, assuring needless social suffering. It’s only tradition which prevents the custody/access mentality from being replaced with 21st century medicine to fix the very ill, adversarial, and costly family law system.

Whether it’s in America or Canada people have been persevering in their attempts to enact equal parenting legislation. Take for instance this line from Feb 4th, “They’ve tried unsuccessfully to change the law and establish a presumption of shared physical custody of children in divorces.” It’s a story about South Dakota Bill 74. Or this recently tabled legislation in the Canadian House of Parliament, for Bill C-560, “This enactment amends the Divorce Act to replace the concept of “custody orders” with that of “parenting orders”. It instructs judges, when making a parenting order, to apply the principle of equal parenting unless it is established that the best interests of the child would be substantially enhanced by allocating parental responsibility other than equally.” Interestingly The Canadian Bar Association published a wonderful piece of sophistry opposing the Bill. The opening line of their preface states that, “The Canadian Bar Association is a national association representing 37,500 jurists, including lawyers, notaries, law teachers and students across Canada.” Yet they seem to have become experts on what’s best for children, especially when the adversarial system they represent is threatened…

There have been efforts to amend the neolithic thinking for fifteen years, and in spite of 80% of Canadian citizens wanting the divorce act to reflect equality as opposed to the adversarial custody and access model, nothing has been done, aside from jawboning. Apparently, according to former Conservative MP, Jay Hill there is too much opposition from special interest groups. Which groups? Lawyers, to maintain their income; judges, to maintain their positions and status quo; feminist groups to maintain control over children and their upbringing; all of these groups have made numerous public statements to support their positions in opposition of both equal or shared parenting.

Yet there is s much confusion, take for instance the backward steps being taken in the United Kingdom. “The message to separating parents is that neither mothers nor fathers are entitled to a legally binding presumption of shared access. Decision-making instead should rightly focus on determining the needs and best interests of each individual child, rather than focusing on the expectations of parents.” Research unsurprisingly shows that children do better in life when both parents are actively and equally involved in their upbringing. Mind-boggling. The Shared Parenting Consortium is fighting to prevent the assumption of equal parenting. The group wanted to prevent the statement in law, that [the] courts should ‘presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare’ could lead to separating parents assuming they are legally bound to equally share access to their children.” It needs to be read at least twice to get your head around it.

The Canadian Equal Parenting Council nearly broke itself in half a few years ago and because of arguments over – Equal vs Shared Parenting. The irony is that if separating parents didn’t want their children, or didn’t want to hurt their former spouse, then equal and or shared would be a no-brainer…’Nope. I’ve had them 50% so far, it’s your turn, I’m leaving them out front at the curb – if they’re gone not my problem’  – it would be comedic, if it wasn’t so tragic.

Social science has shown that equal parenting benefits the children. “Having a close, ongoing relationship with dad after parents’ divorce also has health benefits. As teenagers, these girls are less likely to be extremely overweight or extremely underweight (Menning & Stewart, 2008) or to develop an eating disorder (Maine, 2004).” What does equal mean? Here of course is where complications arise. Mathematically of course it is 50/50, whereas in the study above, the word used was shared parenting and it was loosely defined as between 25% -50%. Every weekend without exception works out to 26%.

The benefits of presumed equal parenting are not just for children. It reduces conflict by eliminating an adversarial contest in court where one parent wins custody and the ‘first loser’ gets access. It’s a tiring effort to affect-positive-change but perseverance in the face of political apathy will have positive social benefits. For 15 years there have been efforts to make the positive change in divorce laws – for that generation of children – it’s too late, the benefits are lost. But good ideas rest on perseverance.