17 March 2014

Update to 1998 "Myths and Realities of Custody and Access" Report Published

The FREDA Centre for Research on Violence Against Women and Children has just published a new report called "Myths and Stereotypes in Family Law: Exploring the Realities and Impacts of Custody and Access / Shared Parenting" (PDF).  The report offers a helpful reality check for the canards offered up in support of legislating a presumption of shared parenting between separated parents by, typically, fathers' rights groups, including:
  • Including the presumption of “shared parenting,” “joint custody,” or “enhanced access” in divorce law will result in good and responsible parenting.
  • More and more men are being denied access to their children by women and the family law process.
  • There is an epidemic of false allegations of child abuse against fathers by malicious and vindictive mothers.
  • Feminists and mothers are fighting against equality for fathers.
The report updates a 1998 report called "Myths and Realities of Custody and Access" prepared by Margaret Denike and Agnes Huang with the FREDA Centre that I expect was prepared for the federal Special Joint Committee established in 1997 as the quid pro quo for the Senate's cooperation in passing the Child Support Guidelines.

I assume that the update was prepared in light of Bill C-560, a private member's bill proposed by MP Maurice Vellacott, presently before Parliament that would amend the the Divorce Act to include a presumption of shared custody, rebuttable upon proof that "the best interests of the child would be substantially enhanced by allocating parenting time ... other than equally." My previous comment on the bill is available in my post "Equal Parenting Amendment Bill Tabled;" a more complete critique of presumptions of shared custody is available in my post "Why There is No Place for Presumptions of Shared Parenting in Family Law."

Update: 18 March 2014

As I've already received my first comment on the above post, I'll announce that I am imposing some ground rules. You see, when I first wrote about Mr. Vellacott's bill in December, I had the pleasure of dealing with a number of comments from fathers' and men's rights people, which escalated after one anonymous posted a call to arms on a men's rights subreddit titled "Canadian lawyer lies in blog about Shared Parenting Laws in Australia, then censors my comments when I call him on it. Help needed!" Of course, I did not censor his remarks, much of which were submitted over the holidays and were accordingly delayed, and I did not "lie" about shared parenting laws in Australia, I merely provided a view that differed from his, which I later supported with a number of articles at his demand for "citations."

In any event, over the weeks that followed the ALL CAPS and multiple-exclamation-marks crowd went to town with various poorly couched arguments relying on emotional persuasion, rather than fact or logic, and attacked my colleagues and I with a variety of slanderous remarks dwelling on lawyers' supposed avarice and willingness to distort the truth to win. As a result, I will publish and reply to the comment I've just received. Future comments, however, may or may not be published and most certainly will not be published if they contain ad hominem attacks against me. I also don't intend to get into a running debate with anyone. Don't feel bad, I'm just not interested.

For those of the view that lawyers (1) foment discord and promote litigation to line their wallets, (2) are liars or "present baseless assertions," or (3) are "scum" who make the world "a worse off place," please review similar comments on my posts "Equal Parenting Amendment Bill Tabled" and "Why There is No Place for Presumptions of Shared Parenting in Family Law" before making comments in a similar vein. If you have something actually original to say on the topic, fill your boots.

For those who wish help in composing a rational argument in support of their views, you may find some helpful tips in my post "A Brief Guide to Making a Better Argument," which is so well-written it was described as "unbelievable!" by one commentator, although I suspect that he may not have been expressing enthusiasm.

6 comments:

  1. Nope. Mothers are abusers too. Both to their spouses and their children. And their damage (and murders) should in no way be marginalized by groups with an agenda. I'm looking at you CBA.

    REBUTTABLE Shared Parenting Presumptions has WORKED for 7 years in Australia.

    The references in the FREDA article are from legal intellectuals. Lawyers, Judges and legal academics are NOT child experts, and they are not child advocates. They are trained to argue; argue a mutated "Frankenstein" area of law (reworked from the basis of property law). The only TRUE advocates for children are children's parents. This is why children are more likely to be abused in Sole custody arrangements.

    The majority of REAL child psychology experts from around the world support legal shared parenting presumptions.

    Also, this article fails to point out that Bill C-560 SPECIFICALLY addresses abuse and neglect in it's PRIMARY considerations:
    "The primary considerations to be taken into account in determining the best interests of a child of the marriage, to be assessed in aggregate, are...the protection of the child from physical and psychological harm through abuse, neglect"

    That's why it is a REBUTTABLE presumption. Why is this not mentioned?

    Finally, Family Law in Canada has NO proper way of determining the validity of abuse cases. That's not to say it cannot, and should not rely on Criminal Law, Police services, and branches of Child Protection Services for determination, and evidence. These legal branches are specifically in place to evaluate *Criminal behavior*. Family Law, by its self, is impotent in this regard. A "kangaroo court" if you will. Its members can be reasonably ignored on the topic of "children's best interest". We know where their interests lie. We've always known it. Shakespeare knew it: "O'er lawyers' fingers, who straight dream on fees"

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    1. Thank you for your comment. Let me address your concerns.

      Mothers are abusers too. No one said they weren't. I was unaware that the CBA marginalizes violence committed by women, which frankly surprises me.

      Rebuttable presumptions of shared parenting have worked in Australia. Well, that's actually a matter of significant debate. A number of lawyers and academics take a contrary view and believe they've been a disaster. According to Professor John Wade, there is "virtually unanimous scholarly and practitioner conclusion that more harm than good has been caused to children by these reforms." Quoting some 2009 statistics by the Australian Institute for Family Studies, Prof. Wade says that at least 200,000 children were continuing to be parented by parents who were incompetent as a result of drugs, alcohol, mental illness and family violence as a result of the presumption. Prof. Wade has much more to say on the topic, all supported up by research, but I'll leave it at that.

      The references in the FREDA report are from legal intellectuals. I don't know what "legal intellectual" means, but I'll assume you're referring to academics. I don't know very many of the authors who are cited by the report, but I do recognize two lawyers, one former supreme court judge and one university professor. With the greatest of respect, family law lawyers are child experts. I practiced family law exclusive for thirteen years, including as a children's lawyer and as a child interviewer for views of the child reports, on top of which I have received extensive training in childhood developmental psychology, attachment theory and family dynamics, and children's experiences of separation. I am in fact a child expert, and believe that other family law lawyers with a similar background would be as well.

      Lawyers, judges and academics are trained to argue, which is why children are more likely to be abused in sole custody arrangements. I'm afraid I don't see the logical connection here. However, the idea that children are more likely to be abused by the custodial parent in situations of sole custody, strikes me as probable. Most of the time, parents have joint custody of their children; this is more or less the unspoken presumption prevailing in British Columbia. Sole custody would typically be awarded in situations of high parental conflict. Since family violence is more prevalent among high conflict parents, it stands to reason that there might be a higher incidence of child abuse involving parents with sole custody. This, however, has nothing to do with the ability to form a cogent argument.

      The majority of child psychologists support a presumption of shared parenting. No, they don't. The jury is out on the issue, although the more recent research that I'm aware of suggests that no particular parenting arrangement is best for all children.

      The article fails to mention that the presumption proposed in Bill C-560 is rebuttable. If you mean the post above, you will see the word "rebuttable" helpfully sandwiched between "critique of" and "of shared custody" in the last paragraph. If you mean the FREDA report, the report doesn't mention Bill C-560 at all.

      Family law has no way of determining the validity of abuse cases. Actually, it does. The experts who usually determine the validity of abuse allegations and physicians, psychiatrists and psychologists; the outcome of any criminal proceedings is also a helpful clue.

      Thank you again for your interesting comments, and your concluding snide remarks about lawyers' purported profit motive.

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  2. I read the report and overall it appears to my layperson's eyes to be quite reasonable in its conclusions. I hope that your comment section doesn't get raided the way it did previously; there's potential here for a productive good-faith discussion but experience tells me that's unlikely to happen.

    That said, I am left confused about the reference to parental alienation. My understanding was that it's alleged far more often than it's true, and that actual alienation is not only extremely rare but also not exclusive to mothers against fathers; I had never realized that the concept of parental alienation itself had been debunked as a myth.

    I tried to read the paper cited in that report, but the only place I could find it online is JSTOR and I'm not in a position to register an account right at the moment (presuming that I can even do so without any academic credentials).

    I don't mean to ask you to do my research for me, but it's very hard to find reliable information on this topic that's well-cited, let alone relevant to the Canadian family justice system. Google gives me a bunch of useless propaganda. I was hoping you might be able to point me in a good direction.

    I'd really like to find something that critically examines how parental alienation is approached in Canada, both in terms of the court system itself but also professionals who have involvement where alienation is alleged, like police, doctors, counselors, or government ministries. I don't imagine that something like that exists but I'm sure that if it does, you know about it!

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    1. Hi Colleen,

      My experience in practice is that the allegations of parental alienation are raised a great deal more often than they are substantiated. Part of the problem, which was pointed out by Drs. Joan Kelly and Janet Johnston in their 2001 paper "The Alienated Child: A Reformulation of Parental Alienation Syndrome," is that children can become estranged from a parent for a whole bunch of very good reasons, like family violence, that have nothing to do with a parent malevolently attempting to alienate a child from the other parent. Of course, from the point of view of the parent from whom the child is estranged, the easiest thing to do is blame the other parent. Hence, a whole lot of unsubstantiated claims of parental alienation.

      You can get the Kelly & Johnston paper here:

      http://jkseminars.com/pdf/AlienatedChildArt.pdf

      There's more information about parental alienation in plainer language on my wiki at:

      http://wiki.clicklaw.bc.ca/index.php/Estranged_and_Alienated_Children

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    2. Thanks! Both of those links have been very helpful in giving me the information I was missing. I think my basic understanding was roughly accurate but I hadn't been acquainted with the pseudo-medical terminology and bad conclusions drawn by Rand and Gardner. Next time I'll check the wiki first!

      So far I've seen nothing that really supports the proposition that a presumption of fifty-fifty parenting could possibly be better than a case-by-case assessment based on a specific family's circumstances. It seems that having ANY "default" parenting arrangement imposed will by definition impose an inappropriate parenting scheme on those families where fifty-fifty isn't in the child's best interests. Besides, if fifty-fifty is genuinely in the best interests of the child, then it's likely that's the parenting arrangement that will result, isn't it? But I suppose many parents - male and female - tend to conflate "what I want" with "the child's best interests".

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