For the Sake of the Children Marathon of Hope

 
PROFESSOR EDWARD KRUK'S RESEARCH
                
Edward Kruk, Associate Professor of Social Work at the University of British Columbia, has been extensively involved in research in the area of child and family policy, particularly child custody, child care, and child protection policy. His research has focused on noncustodial fathers, women struggling with addiction, the working methods of divorce professionals, and harm reduction. Dr. Kruk has been the Academic Leader of the Cluster on Separated and Divorced Dads, a component of the Father Involvement Research Alliance, conducting research and working in partnership with a variety of programs dedicated to supporting fathers and their children.

Edward Kruk is Canada’s foremost expert on Child Custody, and he says the removal of one parent from the life of the child is widespread in Canada. In a recent article from The Epoch Times, Professor Kruk called the family court system in Canada “a national shame.”

“I don’t actually see this issue as one that only affects fathers because there are increasing numbers of mothers who are losing their children and children who are losing their mothers,” says Kruk.

“I like to see it more from the child’s perspective because it is a form of child abuse to have a fit and loving parent forcefully removed by a court in the absence of any child protection concerns or issues,” Kruk stated further.

Non-custodial fathers, too, are “a very at-risk group,” says Kruk, with homicides and suicides disproportionate to the rest of the population.

And while a 2007 survey by SES research found that 80 per cent of Canadians support equal parenting, Kruk says "Canada currently has one of the highest parent removal rates in the world."

The divorce industry is booming in many western countries including Canada, where a contested divorce costs an average of $25,000. This is why, says Kruk, “there’s a very strong vested interest in maintaining the status quo on the part of the legal professionals.”

To read the full article from The Epoch Times Website, please click here.

You can contact Professor Kruk at kruk@interchange.ubc.ca.

Questions raised by Professor Edward Kruk in Child Custody, Access and Parental Responsibility: The Search For A Just And Equitable Standard.

Why are parents with no civil or criminal wrongdoing forced to surrender their rights and responsibilities to raise their children?

Why do courts discriminate against children and families of separated parents by using the indeterminate “best interests of the child” standard to remove parents from children’s lives, as opposed to the clearer “child in need of protection” standard for non-separated parents?

On what basis do courts justify treating parents unequally, as “custodial” and “non-custodial” or “residential” and “non-residential” parents?

Why are children forced to surrender their need for both parents?

Why are social institutions such as the courts undermining, rather than supporting, parents in the fulfillment of their parental responsibilities?


Summary of Major Points from Child Custody, Access and Parental Responsibility: The Search For A Just And Equitable Standard

1) The primary recommendation of the report is the establishment of a legally rebuttable physical joint custody presumption for custody dispute, also known as the “shared parental responsibility” approach. Shared parental responsibility is defined as children spending at least 40 per cent of their time with each parent after separation and divorce.

2) Children of divorce need both parents responsibly involved in their lives, with social institutions supporting parents in their respective roles. The present “winner-take-all” sole custody approach, applied to cases where family violence is not a factor, removes one fit and loving parent.

3) In Canada, mothers initiate two-thirds of child custody proceedings, and there is a clear imbalance in the awards of full custody of children to mothers.

4) When judges become involved in divorce cases, shared parenting is judged not to be in children’s best interests; sole maternal custody remains the norm in judicial determinations.

5) A less adversarial approach to divorce proceedings is desperately needed in Canada, as the current adversarial “winner takes all” approach is failing children and their families. The incidence of family violence rises dramatically in situations where adversarial means are used to “win” court-ordered care and control of children. Such outcomes have profound long-term consequences for children and their development.

6) Lawyers and judges, who are not professionally trained in child development and family dynamics, continue to make child custody determinations largely without the benefit of credible social science evidence. These decisions regarding child custody and access are most often made without reference to research on child development, although this research directly concerns children’s needs and “best interests.”

7) Children’s needs and interests are related to, yet distinct from, those of their parents, and that these needs, physical and psychological, social and spiritual, should be used as the foundation to determine their “best interests.”

8) The disengagement and alienation of non-custodial fathers (and some mothers) from their children’s lives are well documented.

9) Children who are deprived of meaningful relationships with one of their parents are at greater risk psychologically, even when they are able to maintain relationships with the other parent. Children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both parents, whether the two parents live together or not.

10) Children of divorced families frequently exhibit behavioral difficulties, poor self-esteem, and depression, as well as poor school performance.

A) Children under the age of five are the most adversely affected by the divorce transition. They manifest vulnerability to depression, confusion about the nature of families and interpersonal relationships, a tendency to blame themselves for the divorce, regression in behavior and general development, a fear of being sent away or replaced, joyless play, a preoccupation with trying to fit objects together, and a yearning for the absent parent – and they are the group most at risk of losing contact with non-custodial fathers.

B) Early latency-age children exhibit a pervasive sadness and sense of loss, feelings of fear and insecurity, acute longing for the absent parent / intense desire for the reconciliation of their parents – believing the intact family is absolutely necessary for their continued safety and growth.

C) Late latency-age children evidence feelings of shame and embarrassment, active attempts to reconcile their parents while trying to break up any new social relationships, divided loyalties and taking sides between the parents, conflicting feelings of grief and intense anger – usually directed toward the custodial parent (especially by boys), and a two-level functioning (hiding their painful feelings in order to present a courageous front to the world).

D) Adolescents show continuing anger, sadness, a sense of loss and betrayal, shame and embarrassment, and a concern about their own future marriages and relationships.

11) In recent years, studies have examined what specific factors associated with divorce most trouble children. The studies have concluded that the absence of the non-custodial parent is a very significant factor; they describe the intense longing of children for their non-custodial fathers.

12) Studies have found that two factors, the amount and severity of conflict between the parents, and the degree to which children are able to maintain meaningful relationships with each parent, play a major role in determining the outcome of divorce for children. They also found that associated with the prolonged distress of children after divorce are children being the focus of parental conflicts, children experiencing loyalty conflicts, the poor emotional health of either parent, lack of social supports available to parents, poor quality of parenting, lack of or inappropriate communication to children about the divorce, and child poverty.

13) No studies have found that children in sole custody fare better in their psychological adjustment than children in joint custody families, although Clarke-Stewart and Hayward (1996) and Warshak (1992) found that children (especially boys) did significantly better in paternal custody than in maternal custody situations. Children in father custody had the advantage over children in maternal custody of maintaining a more positive relationship with the nonresidential parent.

14) Sole maternal custody often results in father absence, and father absence is associated with the following:

A)    85 per cent of youth in prison are fatherless;
B)    71 per cent of high school dropouts are fatherless;
C)    90 per cent of runaway children are fatherless;
D)    Fatherless youth exhibit higher levels of depression and suicide,
E)    Fatherless youth exhibit higher levels of delinquency,
F)    Fatherless youth exhibit higher levels of promiscuity and teen pregnancy,
G)    Fatherless youth exhibit higher levels of behavioral problems
H)    Fatherless youth exhibit higher levels of substance abuse.
I)    Fatherless youth are more likely to be victims of exploitation and abuse,

J)    The Journal of Ethnology and Sociobiology recently reported that preschoolers not living with both of their biological parents (in two-parent homes and equal shared parenting situations after divorce) are 40 times more likely to be sexually abused.
K)    Finally, father absence through divorce is strongly associated with diminished self-concepts in children.

15) Children of divorce want equal time with their parents, and consider shared parenting to be in their best interests. Seventy percent of children of divorce believe that equal amounts of time with each parent is the best living arrangement for children, and children who had equal time arrangements have the best relations with each of their parents after divorce.

16) Not only do children of divorce want equal time, but equal time works. A review of 33 major North American studies comparing sole with joint physical custody arrangements has shown that children in joint custody arrangements fare significantly better on all adjustment measures than children who live in sole custody arrangements.

17) Shared custody works for parents too, as inter-parental conflict decreases over time in shared custody arrangements, and increases in sole custody arrangements. Inter-parental cooperation increases over time in shared custody arrangements, and decreases in sole custody arrangements.

18) Both U.S. and Canadian research indicates that mothers and fathers working outside the home now spend about the same amount of time caring for their children. According to research by Health Canada, on average each week mothers devote 11.1 hours to childcare; fathers devote 10.5 hours. According to Statistics Canada (Marshall, 2006), men, although still less involved in primary childcare, have significantly increased their participation.

19) Suicide rates are reported to be of “epidemic” proportions among separated and divorced fathers struggling to maintain a parenting relationship with their children, and false allegations and abuse of the legal system has been noted in non-custodial father suicide cases (such as the widely reported case of Darren White).

20) No studies have examined the impact of legal abuse; that is, using a legal advantage to remove a parent from a child’s life via sole custody, and subsequent parental alienation. Uprooting children in this manner and alienating the parent may themselves be forms of child abuse, as suggested by Justice Konigsberg of the B.C. Supreme Court (commenting on the Gettliffe case).

21) Canada has maintained a maternal custody preference throughout most of its history, as the legal environment relating to child custody has been mainly shaped and controlled through judge-made law, legal concepts and presumptions developed though precedent rather than by legislation.

22) The latest data from Statistics Canada (2005, 2004), which examines divorce and child custody outcomes from 2003 and 2002, indicate that 38 per cent of all marriages are likely to end in divorce before the thirtieth wedding anniversary. In cases involving dependent children, in 2003 (based on Central Registry of Divorce Proceedings data on court orders), custody was awarded to mothers in 49.5 per cent of cases, and to fathers in only 8.5 per cent of cases (Statistics Canada, 2005).

23) Joint custody is virtually non-existent in judge-adjudicated cases. For many years, the vast majority of contested or litigated custody awards have been made solely to mothers. Canadian courts, according to the latest court file analysis data, continue to grant maternal custody in the majority of contested cases. The Evaluation of the Divorce Act (Department of Justice, 1990) found, in an analysis of the 1988 court file data, that where there was a trial, custody was awarded to mothers in 77 per cent of cases and to fathers in only 8.6 per cent.

24) Recent unpublished research of Ontario Court of Appeal judgments provides evidence indicating that when children are living with their mothers at the time of the Court of Appeal child custody hearings, it is extremely rare for the courts to upset the status quo. When they are living with their fathers the status quo is not such a potent force. Courts are more likely to disturb the status quo when children are living with their father.

25) Shared parenting is much more frequent when settled outside the court.

26) The 1989 U.N. Convention on the Rights of the Child, to which Canada is a signatory, states “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.” In addition, the UN Convention, in Article 5, emphasizes the primacy of parents in their children’s lives and states “Parties shall respect the responsibilities, rights and duties of parents,” and in Article 9, it states “Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”.

27) Two key principles underlying the U.N. Convention on the Rights of the Child are that parents have the primary responsibility for nurturing children, and the role of governments and communities is to support children and their families; these are both seen to be “in the best interests of children.” Article 19 of the Convention refers to needed measures to protect children from all forms of violence, injury or abuse, neglect, maltreatment or exploitation—and it refers to actual violence and maltreatment, not risks of violence and maltreatment. To remove child custody from a parent because of “risk” rather than proof of harm is not in keeping with the Convention. Article 12 states that the views of the child be given due weight in accordance with the age and maturity of the child, on all matters affecting the child. Finally, Article 8 stipulates the child’s right to preserve his or her identity, as all children are entitled to have their human rights respected, including children of separation and divorce.

28) Although the Divorce Act identifies “the best interests of the child” as the sole criterion in child custody determination and reflects the primacy of parents in the child’s life, it does not identify the specific “needs and other circumstances of the child” that must be considered in determining custodial arrangements, and thus the standard remains indeterminate and subject to judicial discretion. In addition, no mention is made of the primacy of both parents in the child’s life. A custody determination pursuant to divorce is not so much a decision to award custody, but a decision regarding from whom to remove it.

29) Courts in all provinces in Canada continue to award child custody to one parent only, in the great majority of cases, despite the legal recognition that when both parents reside together, custody is held equally by both of them. Sole physical custody (or “primary residence”) to one parent and access to the other is the normal court practice across all provinces, including litigated cases designated as “joint custody.”

30) The majority of custody and access policy research papers and reports of the Canadian federal government, as well as of some provincial governments, have neither sought to clarify the “best interests of the child” standard nor have addressed the issue of children’s need for both parents after divorce. Most have focused to a much greater degree on the issue of child support.

31) A plethora of federal government reports on child custody and access have been completed over the years, and occupy several shelves in the National Library. The most comprehensive research-based report done to date, however, the Special House of Commons Senate Joint Committee on Child Custody and Access (1998) report, For the Sake of the Children, more than any previous examination, sought to assess current research and its implications for child custody and access in Canada. This report, unlike others before and since, focused on shared parenting, parent education and mediation, and defining children’s needs and paternal responsibilities in the divorce transition based on the U.N. Convention on the Rights of the Child, and thus remains a benchmark report in regard to examining the core issues related to child custody and access, going well beyond the cosmetic changes recommended by the other reports. In sum, the Joint Committee found that the current Divorce Act requires revision in a number of key areas. A new act, according to the Committee, should assume the existence of two-parenting households and reflect shared responsibility. It should also take into account the importance of grandparents, siblings and other extended family members in children’s lives. Family mediation should exist alongside rather than replace the legal system. Attending at least one confidential mediation session should be mandatory; indeed, the Committee stressed that the law should affirm that mediation and other methods of dispute resolution be the first choice in cases of marital breakdown.

32) The promotion of responsible fathering after separation and divorce is one of the stated aims of the Conservative Party’s policies on child custody and access. The Conservatives’ position during the 2006 federal election was to implement the Special Joint Committee’s recommendation that the rights and responsibilities of child-rearing be shared between the parents, unless demonstrated not to be in the best interests of the child. The terms “custody” and “access” would be removed from the law and replaced with the term “shared parenting.” This option would utilize a “parenting plan” approach to allocate parental responsibilities, and would legislate a shared parenting presumption in disputed cases, unless not in the best interests of the child.

33) As reflected in government reports prepared by legal scholars, the Canadian legal community rarely supports shared parenting.

34) A major problem that exists in the current Family Court System is that “Family Courts” routinely award sole custody on the basis of unproven allegations.

35) There is evidence that in our well-meaning efforts to save children in the immediate post-separation period from anxiety, confusion, and the normative divorce-engendered conflict, we have set the stage in the longer run for the more ominous symptoms of anger, depression, and a deep sense of loss by depriving the child of the opportunity to maintain a full relationship with each parent.

36) The adversarial Canadian Family Justice system polarizes and disconnects the parties in dispute, and the problem of judicial bias in the direction of sole custody or “primary residence” determinations remains unaddressed.

37) It is clear that an alternative approach is needed that goes beyond “cosmetic” family law reforms toward fundamental changes in divorce law, policy and practice. Clear rules and guidelines are needed to limit judicial discretion and to lessen the adversarial climate that exacerbates parental conflict in divorce.

38) It is generally agreed that any reform of child custody law must ensure that children’s basic needs and “best interests” are addressed effectively. This requires an understanding of children’s fundamental needs in the divorce transition, and the development of a corresponding set of parental and societal responsibilities to meet those needs. A new standard of “the best interests of the child” from the perspective of the child is needed, particularly with respect to what children have identified as their core needs; they are most affected by parental divorce and thus the real “experts” on the matter. By their own account, three essential elements stand out for children of divorce: autonomy, to identify their own “best interests” in the divorce transition; being shielded from conflict and violence between their parents; and substantially equal time in their relationships with each of their parents.

39) Listening to the voices of children themselves (as young adults), we now have clear evidence of a perception of divorce fundamentally different from what most policy makers and legislators have assumed. Most children want to be in the shared physical care of their parents after divorce, and research studies support their stated preferences: children in shared parenting arrangements adjust significantly better than those in sole custody arrangements on all general and divorce-specific adjustment measures.

40) Fathers face significant barriers in maintaining their relationships with their children after separation; from their perspective, their children are removed from their care in the absence of any protection concerns, and many face arrest for even trying to see their own children as non-custodial parents. Many have been forcibly removed from their own homes, which are then confiscated and sold. They face a panoply of other expropriations, including their earnings being tied for years to come with child support burdens that reduce some to penury.

41) In debates and discussions about child custody and access, the following points have been largely overlooked in policy discussions:

A) When divorces occur, a father’s role often becomes extremely marginalized. Because of the bias and prejudices inherent in the sole custody system, resulting in sole maternal custody in the great majority of litigated cases, children’s need for a paternal influence has been overlooked. Fathers are no less “primary” than mothers in their children’s lives, and an access-based “visiting” relationship in no way resembles “parenting,” which requires routine involvement in the daily tasks of care giving.

B) The sole custody system exacerbates conflict, in which the more aggressive and privileged party in custody litigation holds a distinct advantage. Further, the language used in custody law has created expectations about ownership and rights, and who “wins” and “loses.” Most important, the “winner take all” approach, in heightening conflict between former spouses, sometimes leads to tragic outcomes. It is critical that post-divorce living arrangements reduce conflict between parents, and that support services are available at the time of separation to shield children from any destructive parental conflict.

C) In cases where there has been a criminal conviction or an investigated finding that a child is in need of protection from a parent (although such cases constitute a minority of child custody disputes), a judge clearly should have the authority to make a child custody determination, including sole custody. High-conflict cases not involving such violence, however, may lead to first-time violence subsequent to a sole custody order. Within the adversarial sole custody system, fully half of severe violence episodes occur after separation. For the majority of “high-conflict” cases, shared parenting is preventive of violence, particularly when ongoing post divorce therapeutic support is available to parents.

D) It is now increasingly recognized that withholding a fit and loving parent from the life of a child is itself a form of child abuse. Such parental alienation is common in sole custody arrangements, but it is not clear whether shared parenting would reduce such incidents. Therefore it is important that there be some form of enforcement mechanism available to deal with breaches to shared parenting orders, in the absence of established family violence or a finding that a child is in need of protection.

42) An additional key question regarding the present approach to child custody in Canada should be posed in any law reform effort, and that is, “Is the removal of a fit and loving parent from the life of a child, in the absence of an investigated child protection order, a form of systemic abuse, if indeed children need both their mothers and fathers as active parents in their lives following parental separation?”

43) The following “four pillar” framework is offered as a socio-legal policy solution to the problems resulting from adversary-based sole custody determination, father absence in children’s lives, and parental alienation.

A) HARM REDUCTION: Legal Presumption of Shared Parental Responsibility (Rebuttable Presumption of Joint Physical Custody in Family Law)

B) TREATMENT: Parenting Plans, Mediation, and Support/Intervention in High Conflict Cases

C) PREVENTION: Shared Parenting Public Education

D) ENFORCEMENT: Judicial Determination in Cases of Established Abuse; Enforcement of Shared Parental Responsibility Orders

44) The first pillar establishes a legal expectation that existing parent-child relationships will continue after separation; that is, in the interest of stability in children’s relationships with their parents, the post-divorce parenting arrangements will reflect pre-divorce parenting arrangements in regard to the relative amount of time each parent spends with the children. In cases of dispute, however, shared parenting, defined, as children spending equal time with each of their parents, would be the legal presumption in the absence of established family violence or child abuse. This will provide judges with a clear guideline and will avoid the dilemma of judges adjudicating children’s “best interests” in the absence of expertise in this area.

This pillar is intended to maximize the involvement of both parents in their children’s lives after separation. Shared parental responsibility results in a more equal division of parenting time and effort, and gives each parent a respite from full-time child rearing, which is particularly important when, as is the case with most Canadian families, both parents work full-time. It is also intended to maximize parental cooperation and reduce conflict and to prevent serious family violence and child abuse after parental separation. Finally, it is intended to reduce child poverty after divorce

A legal presumption of shared parental responsibility establishes an expectation that the former partners are of equal status before the law in regard to their parental rights and responsibilities, and conveys to children the message that their parents are of equal value as parents. At the same time, in the interests of stability and continuity in children’s relationships with their parents, preexisting parent-child relationships would be expected to continue after separation. Although it is a blunt instrument, and “children spending equal time with each of their parents” may not reflect the existing arrangements in the pre-separation household, a rebuttable joint physical custody presumption would divert parents from a destructive court battle over their children’s care. Shared parental responsibility is also in keeping with current care giving patterns, as the majority of mothers and fathers are now sharing responsibility for child care in two-parent families.

45) The second pillar of our model would set up a legal expectation that parents jointly develop a parenting plan before any court hearing is held on matters related to post separation parenting. The court’s role would then be to ratify the negotiated plan. Through direct negotiation, parent education programs, court-based or independent mediation, or lawyer negotiation, a parenting plan that outlines the parental responsibilities that will meet the needs of their children would be developed before any court hearing is held. This does not require parents to negotiate face to face, but it is aimed at helping them negotiate in the future, as any post-separation living arrangement, whether shared equally or unequally, requires some form of ongoing communication. In the interest of parental autonomy, parents are deemed to have the capacity to resolve their own dispute, rather than surrendering decision-making regarding parenting arrangements to the court system.

Children’s needs for protection from parental conflict are addressed by this legal expectation, as children’s needs become a means of connecting the parents in a positive direction at a time when conflict has divided them. Parents in conflict would be steered toward an “introduction to mediation” session.

Mediation, as an alternative method of dispute resolution, has considerable (and as yet largely untapped) potential in establishing shared parenting as the norm, rather than the exception, for divorced families. In the majority of non-violent “high conflict” cases, both parents are capable and loving caregivers and have at least the potential to minimize their conflict and cooperate with respect to their parenting responsibilities within a shared parenting framework.

With a legal presumption of shared parental responsibility as the cornerstone, mediation could become the instrument whereby parents could be assisted in the development of a child-focused parenting plan. Parents who are oriented to the divorce process and the impact of divorce on family members are better prepared for mediation, and better able to keep the needs of their children at the forefront of their negotiations. Divorce education programs also offer a means to expose divorcing populations to mediation as an alternative mechanism of dispute resolution Further, an educative approach should be an integral part of the mediation process, with a primary focus on children’s needs during and after the divorce process. Family mediators with expertise in the expected effects of divorce on children and parents can be instrumental in helping parents to recognize the potential psychological, social and economic consequences of divorce and, on that foundation, promote parenting plans conducive to children maintaining meaningful, positive post-divorce relationships.

Parent education regarding children’s needs and interests during and after the divorce transition, followed by a therapeutic approach to divorce mediation, offers a highly effective and efficient means of facilitating the development of cooperative shared parenting plans. Within such an approach, parent education may be used to introduce the option of shared parenting as a viable alternative, and to reduce parents’ anxiety about this new living arrangement. Mediation would then help parents work through the development of the parenting plan, and implementing the plan in as cooperative a manner as possible.

Of all the strategies that can be used by divorcing parents to reduce the harmful effects of divorce on their children, most important is the development and maintenance of a cooperative co-parenting relationship. Children’s adjustment post-divorce in a long-term shared parenting arrangement is facilitated by a meaningful routine relationship with each parent; an absence of hostile comments about the other parent; consistent, safe, structured, and predictable care giving environments without parenting disruptions; healthy, caring, low-conflict relationships with each parent; and parents’ emotional health and well being. Any model of long-term support for high-conflict divorced families should focus on these factors to produce positive outcomes for children and their parents.

It is particularly important that hostility between parents be minimized following divorce. Currently, in cases where there is ongoing litigation between parents, children are at greater risk of emotional damage than in less contentious circumstances; in many cases, divorce does not end marital conflict, but exacerbates it.

It is important that children see the good qualities in both of their parents, and that parent’s work toward the development of positive relationships with each other. An effective support system is instrumental in providing parents with the necessary skills to deal with co-parenting challenges: “the central tenets of this system should be to reduce conflict, assure physical security, provide adequate support services to reduce harm to children and to enable the family to manage its own affairs”. In order for such a system to be successful, allied professionals need to be supportive of a model that helps resolve family disputes and focuses on the welfare of the children.

46) The third pillar of our model would see shared parenting education within the high school system, in marriage preparation courses, and upon divorce is essential to a much-needed program of parent education and support. Public education about various models of shared parenting is especially important, including models for “high-conflict” couples. Such programs are being established, with an emphasis on including fathers who have not traditionally been engaged by parenting support programs and services.

Shared parenting education should also involve the judiciary, as the effects of changes in family law legislation on the actual practices of judges are uncertain, although there is evidence that the incidence of shared custody increases and sole maternal custody decreases after statutory changes that permit or encourage joint physical custody. Assumptions about shared parenting being unworkable in cases of disputed custody, and sole custody being in children’s best interests in these cases, should be challenged, and stereotypes about disputing parents addressed.

47) The final pillar addresses directly the question of violence and abuse in family relationships, and enables sanctions to be imposed where there is non-compliance or repeated breaches of orders. When it comes to questions of family violence, children’s safety and well-being are of greatest concern. At the same time, it is important that innocence is presumed unless allegations are proved beyond a reasonable doubt. Children’s safety is best assured by addressing family violence as a criminal matter and child abuse as a child protection issue. This is not, however, the general practice of family courts in Canada, which often proceed as if alleged abuse has occurred even when not proved in criminal court, and in the absence of a child protection investigation.

A rebuttable presumption of shared parental responsibility means that proven cases of family violence would be exempt, and those cases involving either a criminal conviction, such as assault, in a matter directly related to the parenting of the children, or a finding that a child is in need of protection from a parent by a statutory child welfare authority, would be followed by judicial determination of child custody. It may be appropriate in such cases, for one or both parents to have limited or no contact with the children because of potential harm.

In child custody situations in which assault is alleged, a thorough, informed and expeditious comprehensive child welfare assessment is required. The criminal prosecution of family members alleged to have been violent toward any other member of the family would hold accountable all perpetrators of violence, as well as those who are found to allege abuse falsely. The family court would then retain its traditional role in the determination of custody.

48) To the degree that the adversarial sole custody system disregards children’s need for both parents in their lives, it exacerbates the negative consequences of divorce for children not exposed to family violence or abuse. Children value their connection with their parents, and if one biological parent is denigrated, so is the child. The loss of a loving parent through divorce has devastating consequences for children’s self-concept. Children, who are the innocent victims of the “custody wars” between parents, and of the social institutions and policies that exacerbate the conflict, are a highly vulnerable and overlooked population. In the words of writer Jonathan Kozol (1995), “there is nothing predatory in these children; they know that the world does not much like them and they try hard to be good . . .”

49) Post Traumatic Stress: Children and parents who have undergone abuse, including forced separation from each other in the absence of abuse, are subject to post-traumatic stress, and reunification efforts should be undertaken. Any reunification program subsequent to prolonged absence should be undertaken only with great sensitivity, especially when parental alienation is a factor. The importance of regarding both parents as equally valued in the child’s eyes is of utmost importance.

50) Child Support: Although the economic consequences of divorce for all family members are devastating, the recent finding that the standard of living of non-custodial fathers falls below that of custodial mothers is largely unrecognized, and this is a cause for concern, as child support guidelines are based not only on a sole custody framework but also on the feminization of poverty thesis. New child support guidelines within a shared parenting approach should aim toward equalizing the standard of living of both households. In addition, greater attention should be drawn to the general lack of government financial support for parenting itself, and the problem of wage differentials between the genders.

51) False Claims: It is not uncommon for spouses in high-conflict separations to make false or exaggerated allegations of abuse, and false denials are equally a problem. Allegations of parental abuse or neglect of children should be investigated in a timely manner, and allegations of family violence dealt with as a criminal matter in criminal court. When an allegation of abuse is made and an acquittal results in criminal court, this should be binding on a judge in any subsequent family law proceeding. If an accused is convicted in a criminal trial, however, the judge in a family law trial must take the criminal conviction as conclusive evidence that the abuse in question occurred, and act accordingly. The outright suspension of parental involvement in a child’s life must only be done in the case of established child abuse and, even then, reestablishment of a positive parent-child relationship must remain a goal.

52) Civil Restraining Orders and Access Supervision: Civil restraining orders to prohibit parents from contacting a spouse should not be used to prevent parental contact with a child in the absence of a criminal conviction or a finding that a child is in need of protection. Such orders made in the absence of established family violence or child abuse are likely to have serious effects on children’s well-being. Access supervision, in the absence of established abuse, is equally problematic.

53) Abduction and Parental Alienation: The abduction of a child from a parent’s life is a particularly egregious form of abuse. Responsible parenting involves respecting the other parent’s role in the child’s life, and any form of denigration of a former partner and co-parent, the most extreme of which is abduction, is harmful to children, whose connection to each parent must be respected. However, the position that, if there is a reasonable possibility of abduction, this may be grounds for supervising or denying access is contrary to the presumption of innocence, and undermines co-parenting, and is therefore unsupportable.

Parental alienation, which is more common than is often assumed, is the “programming” of a child by one parent to denigrate the other parent. It is a sign of an inability to separate from the couple conflict and focus on the needs of the child. Alienating parents are themselves emotionally fragile, often enmeshed with the child, with a sense of entitlement, needing control, knowing only how to take. Similar sanctions to those in family violence cases should apply in these instances, as poisoned minds and instilled hatred toward a parent is a form of abuse of children.

When children grow up in an atmosphere of parental alienation, their primary role model is a maladaptive, dysfunctional parent. Shared parenting is clearly preferable to sole custody in these cases, as children have equal exposure to a healthier parental influence in their lives.

54) Unrepresented Litigants: Many parents are caught between legal aid criteria and having lost financial resources to the adversarial system. They are thus unrepresented, and unable to get fair hearings in court. This affects a disproportionate number of fathers in Canada.

55) Public Awareness and Support: A large hurdle for fathers and proponents of child custody law reform is garnering public and political attention and support to deal effectively with the social problems of fatherlessness, parental alienation and diminished father involvement after parental separation and divorce. These problems need to be made more visible, and constructive solutions advanced.

Engaging the legal system and professional service providers in dealing with these issues is another challenge. A constructive role for these professionals needs to be advanced if family law is to remove itself from the adversarial arena in cases without violence or abuse.

56) Six Key Policy Recommendations:

A) As Canada lags behind other countries in parental involvement levels, policy recognition of the fact that children need both parents and that parents require social supports to address this need of children is urgently needed. Shared parental responsibility before and after parental separation is a core element of a broader campaign to promote active and responsible father involvement, via direct incentives for parents to spend more time with their children before and after separation and divorce.

B) Policy should recognize the fact that equal rights, privileges and responsibilities for mothers and fathers as parents are needed in divorce legislation to promote children’s adjustment to the consequences of divorce and overall well-being.

C) As post-divorce shared parenting is becoming established as the norm in Canada in non-litigated cases, a presumption of equal shared parenting responsibility should be established as a legal foundation for litigated cases, rebuttable only in cases of established violence. Only in the case of established family violence or substantiated abuse, with a finding that a child is in need of protection from a parent or parents, is a judicial determination of sole custody warranted.

D) When abuse allegations are made, an immediate and thorough investigation of the allegations must be undertaken by a competent child welfare authority. Child exposure to spousal violence should be a legal basis for finding a child in need of protection. Allegations of family violence should be part of a criminal and child protection process, not left to be settled in family court. The family court should not have to resolve conflicting criminal allegations, as litigants are entitled to more than “proof on the balance of probabilities” when their relationship with their children is at stake.

E) Parent education and therapeutic family mediation services should focus on the development of parenting plans and provide post-separation support for co-parenting, but these should be voluntary. A mandatory introduction to mediation session should be considered only in cases where violence and abuse are not a factor.

F) Enforcement measures may need to be used to ensure compliance with shared parenting orders, only after mediation efforts have been unsuccessful or support services refused. In the presence of a finding that the child is in need of protection from a parent or parents, enforcement measures should be used to ensure compliance with child protection orders.

   
 
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