Barbara Kay: Solution to Family Court Crisis is Equal Parenting Presumption

October 18, 2013 by Robert Franklin, Esq.

My last post was about a British Member of Parliament, Jon Cruddas, who says the right words about the value of fathers to children, but would rather be horse whipped than do anything to ensure that children and fathers continue meaningful relationships once Mom and Dad have divorced. Cruddas’s bold reform idea? Urge fathers to take pre-natal classes.

I’m all for pre-natal classes, but with all due respect to the MP, they’ll do precisely nothing to correct the radical imbalance in custody orders, parenting time, visitation, etc. that systematically reduce father-child time to nothing, or almost that. Cruddas would rather pretend to address the crisis in fatherlessness than confront opponents of reform, i.e. family lawyers who make their living exacerbating conflict between already conflictual parents, and feminists who’ve been working for decades to separate fathers from mothers and children. In other words, important as the problem of fatherlessness is, politicians like Cruddas would rather get re-elected than do one of the most constructive things for society imaginable.

So he took to the dais recently to exhibit his profound ignorance about the subject of children without fathers and fathers without children.

Timing is everything, so it’s no surprise that this article came out just two days later (National Post, 10/16/13). It’s by Barbara Kay, which means it’s a breath of fresh air in the fetid room that houses our national – and indeed worldwide – discourse on fathers and children. As usual, Kay gets it, and she brings the appropriate tone of simmering outrage to the topic. The facts about the family law systems throughout the English-speaking world are so similar, Kay could be writing about the U.S., the U.K., Australia or New Zealand, but of course she’s writing about Canada.

We know that family law accounts for 35% of all civil cases; that four of 10 Ontario family law disputes remain unresolved after three years; and that about 50% of family-law litigants represent themselves in court. And yet the Family Justice Working Group’s Report admits, “We lack an empirical understanding of what happens to family cases after they enter the justice system …. how many cases settle, when or why they settle, or after what cost and on what basis they resolve.”

Yep. In the U.S., only the State of Washington even attempts to keep records of the most basic information about custody cases, and its website hasn’t been updated in over two years. A private organization in Nebraska compiles some figures and of course the Bureau of the Census has basic data on who pays child support. But the truth is that lawmakers are either so uncaring about the facts of custody cases or so afraid of the public’s knowing what their laws have wrought, that we, like Canadians, know little about what family courts are doing or why.

The numbers show that the system is unfair to men. Women are primary or equal breadwinners in many families, and about one in three fathers is a primary caregiver. And yet, among the cases surveyed by Statistics Canada in its report “Interjurisdictional cases of spousal and child support, 2010-11,” 96% of support payors were men. Moreover, according to a 2011 Department of Justice publication, “Sharing Custody — When Parents Separate: Further Findings from the National Longitudinal Survey of Children and Youth,” only 5.2% of sole custody is granted to fathers.

It’s not quite that bad in this country, but we’re close. Here, the female to male ratio of time spent in childcare is about 55%:45% (2.14 hours per day: 1.71 hours per day) according to the Bureau of Labor Statistics American Time Use Survey. But about 84% of primary custody goes to mothers and 89.3% of child support orders have a father as the payor. The percentage of sole custody by either sex is basically unknown although the Washington State data indicate that it’s under 10%.

The bias manifests itself in other ways, too. Government agencies in 13 Canadian provinces and territories dedicate themselves to collecting child support (often with draconian enforcement mechanisms). But no province or territory has a department dedicated to ensuring that non-custodial parents (mostly men) have proper access to their children.

Ditto. Here every state has a huge and elaborate bureaucracy for the collection, disbursement and enforcement of child support orders. To say that enforcement mechanisms here are draconian is to understate the matter. For failure to pay everything they owe, fathers can be publicly shamed, have their drivers and other licenses suspended and be jailed without access to a lawyer.

All that can be done on the basis not of his income, but of his “imputed” income, i.e. the amount a judge decides he could earn based on his education and other considerations. Never mind the recession. Never mind that he’s diligently looked for a job. Never mind that he truly hasn’t the money to pay. If he needs to sell his house, his car, his furniture, his every asset in order to make his payments, he must do so. If he makes an extra payment by mistake or pays to his ex directly rather than through the state agency, the court treats that payment as if it had never happened, calling it a gift even though it was no such thing.

What about the other side of the coin? What do states do to enforce visitation orders that overwhelmingly benefit fathers? As in Canada, next to nothing. The most telling statistic is that the federal government pays states $5 billion a year to enforce child support orders and a paltry $10 million a year for visitation “support.” That’s a 500:1 ratio.

Why did I put the word “support” in quotation marks? I did so for the simple reason that the money is too little and too targeted at things that don’t matter for it to provide actual assistance for fathers who are being denied their visitation rights. The most important restriction on that $10 million is that, by law, none of it can go to hire lawyers. That’s right, a father whose ex is interfering with him seeing his child, gets essentially no help from anyone. He’s on his own. But just in case some state might actually provide some help, it can’t come in the form of what he needs most – a lawyer.

That means, he’s got to figure out what motion(s) to file, with which court, what evidence to produce in court, what legal arguments to make, what precedents to cite, etc. all by himself. And of course he’s got to foot the bill for the filing fees as well.

Meanwhile, if he falls behind on his payments, Mom can turn to one of the state’s largest and best-funded bureaucracies to help her. Do they have lawyers to represent her? You bet they do, and a lot of them. Does she have to pay them? Of course not. What about the filing fees? Nope. It’s all taken care of by her Uncle Sam and his friends in her state.

Anti-father/pro-mother bias doesn’t get much more blatant than that. But beyond the bias, let’s not forget the result. The result of all of it – the custody orders, child support and visitation, and so much more – is to separate fathers from children. If judges just painted a big sign in red above the door of every family court reading “Fathers Not Welcome,” it wouldn’t be any clearer.

The solution is a default presumption of equal shared parenting (rebuttable where there is demonstrable abuse). This was the recommendation put forward 15 years ago by the Special Joint Committee of the Senate and the House of Commons on Child Custody and Access, whose exhaustively researched report promptly was routed to a political oubliette where, shamefully, it still languishes.

Children typically want to continue loving both their parents, which requires equal or near-equal physical time with both. Numerous credible studies conclude that this fairest of paradigms meets the best interests of the child, while being equitable to both parents. Influential ideologues may prefer mother-friendly courts, but polls show overwhelming, gender-neutral public support for an equal-parenting default. The only losers would be lawyers.

A default of shared parenting would diminish false allegations of abuse, an all too common strategy for gaining sole custody; and it would ensure the child’s continuing positive engagement with grandparents and other extended family members, who so often are tragically denied access to children they love by custody “winners.”

Divorce itself changed to “no-fault” decades ago. By what logic do post-separation parenting rights yet remain fault-based? All these fancy reports are treating the branches of a sick family-court tree, when the blight is in the tree’s petrified roots.

I can’t say it any better. The only thing I can add is that, in state after state, when a bill comes before a legislative committee to equalize parenting post-divorce, the ones first in line to speak against it are family lawyers. It’s no secret why. Lawyers take conflict to the bank, and many studies show that a presumption of equal parenting actually serves to reduce conflict between parents. That comes as no surprise given that such a system is no longer a “winner take” all one. When neither parent stands to lose his/her children, when both parents know they’ll continue to see their children frequently and for significant periods of time, neither is inclined to fight.

Add to that the fact that kids don’t want to lose either parent, and you have the outline of the obvious solution to our family court ills – equal custody following divorce. Well, it’s obvious to most people, just not those who hold public office. People like Jon Cruddas.

National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.


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