Equal shared parenting — best for parents, best for children
NationalPost.com – Full Comment
March 25, 2014. Edward Kruk, National Post
In recent days, the National Post has brought forward two sides of the current debate on Bill C-560, An Act to amend the Divorce Act (equal parenting), set for second reading in the House of Commons today.
Although the two articles, by Barbara Kay (“After a divorce, equal parenting rights should be the norm,” March 19) and Tasha Kheiriddin (“Equal shared parenting laws don’t put kids first,” March 20) appear at first glance to present diametrically opposed positions, each expresses valid concerns in regard to the importance of maintaining parent-child relationships, ensuring continuity and stability in children’s lives, and containing parental conflict. The question is whether any one legal formula can be crafted to take on board all of these concerns.
The problem with Canada’s current “best interests of the child” approach, as codified in the Divorce Act, is that it relies on a discretionary method of determining children’s interests, in which judges have unfettered latitude in an area of child development and family dynamics in which they have little or no expertise. Thus, their subjective judgments about children’s needs and interests are variable, inconsistent and unpredictable.
Judges are forced to focus on parental deficits and projective speculation about who will be the better parent, rather than children’s needs for meaningful relationships with both parents, stability and continuity in their routines and relationships, and being shielded from parental conflict and family violence. The current practice of the judiciary undermines rather than supports parents in the fulfillment of their parenting responsibilities: One parent is simply removed as a primary caregiver of children when parents cannot agree on parenting arrangements.
There is no basis in either law or psychology for choosing between two perfectly adequate parents who are in conflict over parenting arrangements. We support and encourage shared parenting in families where parents are living together, to the point where this has become the typical arrangement in contemporary family life; and there is no reason why such arrangements should not be encouraged and protected when parents live apart.
There are numerous reasons, as Ms. Kheiriddin enumerates, why we should take a cautious approach to a “carte-blanche” equal parenting presumption, most importantly concerns related to exposing children to family violence situations, and preserving continuity of relationships where one parent has traditionally assumed primary responsibility for children’s care and upbringing. However, a rebuttable presumption of equal shared parenting is not incompatible with a rebuttable presumption against shared parenting in family violence situations. And equal parenting as a presumption is meant to be applied to the majority of families where parents have already shared child care responsibilities when living together; maintaining existing bonds where one parent has been the sole caregiver may override the equal parent presumption.
Yet the importance of children maintaining meaningful and equal relationships with both parents, an arrangement that best shields children from ongoing conflict, cannot be overstated. The devastating effects of father and mother absence in the lives of children is widely documented. There are now over 30 large-scale studies over the past decade that demonstrate significantly better outcomes for children and parents in shared parenting arrangements.
Shared parenting is, not surprisingly, the stated preference of parents and children themselves
This includes shared parenting of infants and very young children. A consensus of 110 divorce scholars, in the current issue of the APA journal Psychology, Public Policy and Law, conclude unequivocally that “in normal circumstances, the evidence supports shared residential arrangements for children under four years of age whose parents live apart from each other … Further, the research indicates that because infants develop attachment relationships with both of their parents, there is a danger of disturbing one of those relationships by designating one parent as primary and limiting the infant’s time with the other parent. Policies and parenting plans should encourage and maximize the chances that infants will be raised by two adequate and involved parents.”
Shared parenting is, not surprisingly, also the stated preference of parents and children themselves. Research from jurisdictions that have implemented a shared parenting presumption, including Sweden, Belgium and Australia, are highly encouraging.
The current adversarial system in family law is unsustainable. It is our responsibility to set aside polarized positions and work collaboratively toward supporting children and families during difficult times of family transition.
Edward Kruk is Associate Professor of Social Work at the University of British Columbia, specializing in child and family policy.
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