Author: Super User

October 29, 2019 by Robert Franklin, JD, Member, National Board of Directors

Alimony in Canada has gotten out of hand.  This article, for example, informs us that, if a marriage lasts just three years, the payor spouse can be required to pay the payee spouse alimony for 15 years (Financial Post, 10/8/19).  Seriously.

The specific raison d’etre for the article is a discussion of the Spousal Support Advisory Guidelines which, as the name implies, are not mandatory, but which judges consult when issuing support orders.

What the SSAGs make clear, although the article does not, is that almost all cases in which one spouse earns more than the other result in an award of spousal support.  The guidelines call for judges to calculate the difference between the gross earnings of the two spouses.  They then take between 1.5% and 2% of that difference and multiply the result by the number of years of the marriage.

So, if John earns $10,000 per month and Jane $2,000, and the two have been married for 15 years, then John ends up paying Jane between $1,800 and $2,400 per month for the next 7.5 – 15 years.  Taking the upper end of that range, Jane would have provided the couple $360,000 during their marriage, but would take away $432,000 in spousal support over the same period of time.  During the term of their marriage of course, Jane’s standard of living would have been vastly higher due to John’s earnings than had she alone supported herself.  But neither Canadian law nor the SSAGs credit John with having done so much to increase his wife’s standard of living.

It gets worse if there’s a child.  Here’s one of the examples offered by the SSAGs themselves:

Ted and Alice have separated after 11 years together. Ted works at a local manufacturing plant, earning $80,000 gross per year. Alice has been home with the two children, now aged 8 and 10, who continue to reside with her after separation. After the separation, Alice found work, less than full time, earning $20,000 gross per year. Alice’s mother provides lunch and after-school care for the children, for nothing, when Alice has to work. Ted will pay the table amount for child support, $1,159 per month…

Using the family net disposable income figures (or the similar monthly cash flow figures) more familiar to current software users, spousal support of $1,025 monthly along with the child support would leave Alice and the children with $4,003 per month and Ted with $2,976 per month, or 57.4 per cent of the family’s net disposable income in favour of Alice and the children.

The assumptions and calculations under which Ted’s earning four times what Alice does results in his ending up with less than 75% of what she does are, shall we say, complex.  For one thing, his child support payment to Alice doesn’t reduce dollar-for-dollar his spousal support obligation, even though every dollar is like every other dollar and all contribute to support a household.  For another,

[W]e have to iterate, i.e. to estimate hypothetical spousal support repeatedly, in order to determine the amount of spousal support that will leave the lower income recipient spouse with between 40 and 46 percent of the combined pool of individual net disposable income.

In short, whatever the figures, whatever the ex-spouses earn, the recipient of spousal support will never receive less than 40% of their combined net incomes.  Indeed, the SSAGs refer to one case in which the wife ended up with 60%.

None of this of course asks, much less answers, the question “Why have spousal support at all?”  In an era in which women are fully capable of supporting themselves, why should it be the obligation of a woman’s ex-husband to support her after she’s divorced him?  (I use those sex-specific words because, in the U.S., 97% of spousal support is paid by men to women and over 70% of divorce cases are filed by women.)  Why should she not, like the rest of humanity, simply make her decisions and bear the consequences.  If divorcing him means a temporary decline in her standard of living, what’s the problem?  The very existence of spousal support is due to archaic notions about the fragility of women and their need for perpetual protection by men.  No one now takes those notions seriously – no one, that is, except legislators who write alimony laws.

Plus of course, when children are involved, the simplest and most beneficial way to obviate the requirement of spousal support is equal parenting.  With equal parenting, each parent would bear the costs and the time required to raise the child equally with the other parent.  That would mean that neither would be unable to work and earn due to his/her childcare obligations.  So it’s interesting to see that the very people who scream bloody murder when legislatures seek to reform alimony laws are the same ones who adamantly oppose shared parenting.  They seem to like the status quo that combines sole/primary maternal child custody with hefty transfers of income and wealth from ex-husbands to ex-wives.

As I’ve said before, there should be certain narrow exceptions to any rule of no spousal support.  If one spouse is old or disabled, the other shouldn’t leave him/her high and dry.  If one has taken time out of his/her career to care for children, then they should be afforded some reasonable amount of time to get back on their feet and into the labor market.

But beyond that, we should let adults be adults and ask them to be accountable for their own behavior.  Spousal support laws are dedicated to the opposite proposition and have no place in the English-speaking cultures of today.

October 15, 2019 by Robert Franklin, JD, Member, National Board of Directors

We’re back to Jess Hill’s thoroughly scurrilous article in The Guardian, about which I wrote last time.  Now, in my last piece, I tried to hit the high (or low) points of Hill’s article, but there was no way I could cover all its many defects.

Like other articles we’ve seen, Hill’s main point is that family courts routinely hand custody to abusive fathers.  Given that, fathers should have even less contact with their kids than they now do.  Indeed, that seems to have become the excuse du jour of those who would deny children healthy relationships with their fathers.  And as ever, lacking any facts to support that excuse, people like Hill resort to simply making some things up and ignoring the many facts that contradict their thesis.

So, for example, Hill makes the remarkable assertion that those of us who advocate for family court reform are actually demanding “laws mandating equal shared parenting.”  That of course is entirely untrue.  I’ve been going to bat every day for the last 11 years for equal parenting and never seen a single bill in any state or nation that “mandated equal shared parenting.”  Not one.  At most, those bills would have established a rebuttable presumption that equal parenting is in children’s best interests, assuming fit, non-abusive parents.

Most of Hill’s piece is her recounting of what she says is the history of shared parenting advocates to influence the Australian Parliament.  Some of that, like the short-lived requirement that parents promote the child’s relationship with the other parent (a.k.a. the “friendly parent” provision), she actually gets right. But, in tracing the history of the reform movement, Hill leaves out a fact that many would consider germane to the issue, i.e. that none of the efforts by reform advocates actually improved fathers’ chances of either getting custody or enforcing their “right” of access to their kids.  Yes, the law changed somewhat over the years, but there’s absolutely no indication that any of it helped.  To admit such a fact would obviously undermine Hill’s sense of grievance, so she leaves it out.

Further, she claims that, during part of that history, there’s been an emphasis in the law on parents having contact with their kids.  What she means is that judges often issue orders saying that Dad gets to seen his son or daughter on such-and-such a schedule.  But orders aren’t contact and, as I’ve often said, case law in Australia prohibits family court judges from enforcing their orders of contact via their contempt power. 

The “reasoning” for that is that children suffer when their custodial parent (almost all of whom are mothers) is taken from them, even if only for a few days.  But, when it comes to non-custodial parents’ (almost all of whom are fathers) “right” of access, the exact opposite reasoning is used.  If Dad takes his child on an unscheduled vacation, in violation of the court’s order, then it’s jail and fines for him.  If you don’t believe me, read Australian historian John Hirst’s long essay entitled “Kangaroo Court: Family Law in Australia.”  Needless to say, the reality that courts refuse to enforce access rights goes unmentioned by Hill.

Against that backdrop, Hill complains that, although allegations of DV are made by mothers against fathers in 50% of custody cases, courts only denied 3% of those fathers all contact with their children.  To her, that’s evidence that courts don’t much care about mothers’ claims of violence or abuse.  Of course it’s also susceptible of other interpretations.  One of those is that a huge number of those allegations are false or at least unproved.  Another is that, given the broad definition of DV in the law, many of those claims aren’t sufficient to deny a child all contact with its father as Hill would prefer. As the Australian barrister I mentioned yesterday pointed out, when slamming a door and criticizing a mother’s cooking are sufficient to get a father removed from his child’s life for up to a year, the only surprise is that more mothers don’t claim abuse.

Then there are Hill’s naked assertions with no factual support.  So for example, she claims that Australian courts have “come to see mothers as the problem.”  Citation?  If courts see mothers as the problem why do they still grant them custody to the almost complete exclusion of fathers? 

As I mentioned last time, Hill claims that the science on parental alienation is “junk science.”  It’s anything but of course, but she goes on to rue the fact that, in some cases in which a mother has alienated the child, judges actually transfer custody to Dad.  A judge doing so is right in line with best practices when the alienation is severe, but Hill is so miffed at the idea that she considers doing so to be per se wrong.  Does she consult the science on parental alienation and the success some programs have when custody is removed from the alienating parent?  She does not.

No, Hill only cites the case of “Sandra” to demonstrate her point that seems to be that no mother, regardless of how alienating she is, should ever lose custody, even for a short time.  But “Sandra’s” case in no way supports Hill’s claim.

[T]he family court judge in her case agreed with the family report writer’s analysis that the allegations likely stemmed from the “anxiety of the mother”.

In a secret hearing, the judge ordered that custody be switched to the father, despite the kids having only ever had limited contact with him. Sandra was prohibited from seeing or even speaking to her children for two weeks. Following that, she could only see her children a couple of hours every fortnight, monitored by a supervisor at $65 an hour. Aside from her allegations, the family report writer found no other problems with Sandra’s parenting.

Was there a problem with what the court did that was, in any case, quite unobtrusive?  The mother was found to have alienated the children and the judge placed them in the father’s care for two weeks.  Did anything amiss happen during those two weeks?  Or did the children’s relationship with Dad improve?  Hill doesn’t say, apparently assuming that the mere recitation of facts should be sufficient to make her point.  What point that is is anyone’s guess, but when a writer uses precious words to cite a case that doesn’t support her claims, it begins to look like she had nothing better to offer.

Hill’s article is almost uniformly bad, by turns dishonest, misleading and certainly anti-father.  But, as it turns out, The Guardian’s just getting started.  More on that next time.

October 14, 2019 by Robert Franklin, JD, Member, National Board of Directors

If Jess Hill’s screed in The Guardian weren’t dated October 2, 2019, I’d have guessed it was a blast from the distant past – the mid-90s, perhaps (Guardian, 10/2/19).  That’s because it traffics in the same frankly false and misleading sorts of claims and the virulent misandry that we so often saw back then regarding fathers, children and child custody.  It’s astonishing to read such nonsense in 2019.

As I reported in my last piece, Hill was spurred to write the article by the Australian government’s announcement that it’s going to review child custody laws.  The latest such review was so badly done, so obviously biased and so clearly at odds with known facts and science that it richly deserves to be replaced.  But that upcoming replacement is what has Hill in a lather.  The nut of her article is that Australian family courts routinely give custody of children (or at least access) to abusive fathers.

Since numbered lists of things have long been the rage, here are six things we can “learn” from Hill’s Guardian piece:

1.Men perpetrate domestic violence and women don’t.

Throughout her article, Hill invariably refers to perpetrators as men and victims as women.  And that’s not just the case with the Guardian piece.  Hill’s written a lot about DV and it’s always the same.  Nowhere does she cite any data for the proposition of course since all the reliable information on DV shows women making up at least 50% of those who initiate family violence.  Indeed, source after source tells us that lesbian relationships are the most prone to violence of all, but those facts don’t fit Hill’s narrative, so they don’t appear in her article.

2. Fathers abuse children and mothers don’t.

See #1 above.  Australia appears not to rigorously keep data on who harms children, but in the U.S., mothers commit twice the abuse and neglect of kids as do fathers and I suspect the numbers in Australia aren’t that much different.  The U.S. Administration for Families and Children has accumulated data from state child welfare agencies for decades now and the data are quite consistent: about 40% of child abuse and neglect is committed by mothers and about 20% by fathers.  Needless to say, Hill offers no justification for painting fathers as abusers and mothers as always protective.

3. Domestic violence is violence.

Sometimes it is of course, but often it’s not.  Even Hill admits that, in 2012, the Australian government “expanded the definition of domestic violence.”  It didn’t need to, given that the “definition” at the time included almost anything of a conflictual nature that could occur between intimate partners, but it did anyway.  Back in 2015, I reported on an article by an Australian family lawyer bemoaning, among other things, the ridiculously expansive legal notion of DV.  Here’s what the barrister said about that:

In any event, the act defines family violence so widely, it includes the sort of friction that occurs occasionally in even the happiest family: heated argument, raised voices, the silent treatment. I’ve seen an application succeed where the husband criticised his wife’s cooking and (on a separate occasion) slammed a door. You can always find something a man’s done wrong.

Of course Hill doesn’t let on that much of what she calls domestic violence, that she considers worthy of denying a child contact with its father looks like the above – a snide remark about a meal, a slammed door.

4. All allegations of DV made by mothers are true.

Nowhere does Hill admit of the possibility that litigants in child custody hearings sometimes fabricate claims of DV in order to gain an advantage over the other parent.  For decades, in countries throughout the English-speaking world, this has been a known fact.  Lawyers in the U.S. for example have, since at least the mid-90s, been alternately complaining about the use of false allegations and, well, using them on behalf of their clients.  As the Australian barrister referred to above recounted, the same is true there.  Hill admits that some 43% of Australians report that mothers often assert false claims of DV in order to improve their chances at child custody, but weirdly, she presents that not to condemn the court system for allowing those false allegations, but to suggest that, in some way, the public has it all wrong.

5. Australian courts routinely discount mothers’ claims of DV.

And yet our friend the barrister tells a wholly different story, one in which fathers are tossed out of their homes and families solely on the say-so of their partners.

My client Tom* was at work when the police turned up. They served him with an intervention order, took him home and told him to pack a suitcase. If he returned home, or contacted his wife or children, he’d be facing two years’ jail. He’d had no inkling this was coming.

The order was an interim one, granted ex parte. That means the court issued it in his absence, having heard only his wife’s side of the story.

Meanwhile, making a claim of DV is the easiest thing in Australian law, but getting the no-contact order overturned is like pulling teeth.

In theory, Tom could go to court and argue his case, but a hearing date was months away…

Another client of mine, for example, was subject to an interim order for a year before the application against him was dismissed. And that took nine separate court appearances…

Just in case that wasn’t already clear, the system makes it more so. It does that by charging targets of DV claims hefty sums to defend the allegations while making them is free to the claimant.

Indeed, the ease of applying for an order itself creates problems. Most litigation incurs some cost in getting the ball rolling. Not so for an intervention order, where there’s no stamp duty or filing fee…

Not only do courts accept claims of DV, even when they shouldn’t, the very act of asserting one is simplicity itself while proving the assertion wrong takes months or years, thousands of dollars and unimaginable heartache.  But for Jess Hill, that amazing power on the part of mothers isn’t enough.

6. Parental alienation is ‘junk science.’

Hill tosses off that claim in passing, apparently wanting readers to believe that it is so obviously true that it needs no factual support.  The reality is that it’s so completely at odds with the scientific truth that Hill has nothing to back up her patently untrue claim.  In truth, evidence of parental alienation is routinely accepted by courts under the stringent Daubert standard for admissibility.  The fact is that hundreds of mental health researchers around the world have been investigating and writing about PA since the 1950s (although it wasn’t called PA until much later).  There’s now a huge body of science on parental alienation that opponents of children having real relationships with their fathers never get around to mentioning, much less refuting.  Of course, Jess Hill is one such opponent.

Hill’s piece is so frankly bad that it warrants one more post to describe.  I’ll do that next time.  

October 10, 2019 by Jennifer J. Harman, PhD, Associate Professor of Psychology, Colorado State University

“High-conflict” is a label assigned to many parents who have on-going conflict after their separation or divorce. As an associate professor who has researched and published on the topic of intimate relationship dynamics for nearly 20 years, this label never quite sat well with me. When we think about conflict, the old adage “it takes two to tango” often underlies assumptions of the parties involved. Attributions of blame are regularly placed on “high conflict” parents, as if they are both responsible for the continued strife that repeatedly leads them back to family court for intervention. Exasperated legal and mental health professionals throw their hands up in the air and tell the parents “why can’t you two just get along?!” This assumption that both parents are equally responsible for conflict is naïve and reflects a poor understanding of the role of power in family violence.

Research on domestic violence has identified two basic forms:

• Situational couple violence, where both partners have similar levels of power, low levels of pathology, the aggression is reciprocal, and it is used as a means to an end (e.g., to stop an argument); and
• Intimate terrorism, where one partner has considerably more power over the other, has more pathology (e.g., narcissism), the aggression is not typically reciprocated, and the aggression is used to control and dominate the other partner over time.

It has taken many years for professionals and the general public to come to an understanding that victims of intimate terrorism (aka battery) are not equally to blame for their abuse, and that they often lack the power to protect themselves and leave their abusive relationships. We do not call families in which there is intimate terrorism “high-conflict.” We call them abusive.

These two basic types of domestic violence directly parallel the way conflict occurs in families after divorce. In families where there are loyalty conflicts, children are put in the middle of their parents. They are torn between placing their loyalties with one parent over the other. To have this type of influence over the child, both parents need to have similar levels of power. Children’s preferences for a parent may fluctuate over time, but the child generally still loves both parents. In contrast, families where there is parental alienation have a child who is heavily influenced by one parent to refuse and even completely reject the other parent. As the parental alienation becomes more severe, the child psychologically splits to such an extent that they hate their rejected parent and may ultimately refuse to have any relationship with them at all.

Parental alienation experts have opined that the power dynamics in families affected by parental alienation are unequal and therefore are less likely to be reciprocated by the less powerful parent, which would make it resemble intimate terrorism more than situational couple violence. In a new paper I published with my colleagues in Children and Youth Services Review (November, 2019), we provide some of the first evidence in support of this hypothesis. We conducted three national polls in the U.S. and Canada, with the samples selected to be representative of the two country’s populations. In the third poll, we sampled adult parents (n= 669) in the U.S. who had children with someone they were no longer in a relationship with. Using an on-line survey, we provided respondents with a check-list of 18 commonly used parental alienating behaviors designed to harm the target of the behavior and their relationship with their children (e.g., tell the child the other parent doesn’t love them). They were asked to check off any behaviors they, and/or the other parent of their child(ren) have done. Parents also completed an empirically validated measure that assesses the parental alienation of their children.

As we suspected, parents who were moderately to severely alienated from their children were the least likely to reciprocate parental alienating behaviors (~39% of the sample). In other words, if the other parent of their child engaged in twice as many or more parental alienating behaviors (average was about 7 out of 18), they were more likely to be alienated from their children than parents who were reciprocating alienating behaviors to a similar degree. Interestingly, those parents who reciprocated parental alienating behaviors (~50% of the sample) had the highest level of hostility towards the other parent— parents who were alienated from their children had the least amount of hostility towards the alienating parent.

Parental alienation and loyalty conflicts both cause considerable harm to children, but our poll only assessed outcomes that are unique for alienated children. Therefore, it is important not to conclude from our study that if a parent wants to protect their children from parental alienation, they should start reciprocating the parental alienating behaviors of the other parent. Parental alienating behaviors, whether done by one or both parents, are psychologically abusive to children. It is also important to recognize that even if an alienated parent wanted to reciprocate, they often lack the power to do so, just as a victim of battery lacks the power to do anything in their abusive relationship with an intimate terrorist.

Laying blame on both parents for conflict, when about 2/5 of the time one parent is the primary perpetrator, is turning a blind eye to over 22 million parents in the U.S. who are the targets of parental alienating behaviors (an estimate also reported in our new study). It is imperative that we gain a more nuanced understanding of how power operates in post-divorce families so that practitioners and professionals are able to assess and intervene effectively to protect children from conflict.