July 24, 2013
A judicial presumption of equally shared parenting following separation or divorce is a fundamental right.
This essay is in support of the international movement for a judicial presumption of equally shared parenting — joint legal stewardship and residential time as equal as is practicable —; following parental separation. Those who oppose this movement deny that there is a moral right or ought to be a legal right to that outcome. For example, they say that child custody and parental contact should be decided on the basis of “the best interests of the child,” not of parental rights. They may even dismiss the very idea of parental rights, using pat phrases such as ‘children are not property.’ In so doing, they are denying some fundamental legal and moral principles.
One sophistical argument should be exposed at the outset. It is often replied that “each case is individual, and the courts should be allowed to make flexible judgments.” But this is deliberately misleading; a presumption can always be overridden by sufficient contrary reasons, as is illustrated by the “presumption of innocence.” This flexibility argument is also manifestly insincere: apart from ignoring all the other presumptions in law to which it would apply equally (equally badly), these opponents usually go on to promote presumptions of their own, such as the “primary caregiver” one. (See below. They also promote one involving spousal abuse; false accusations of such abuse, rampant today as a tactic for getting custody in divorce, is a topic for another time.)
The error of this position is easily realized. If parents were really regarded as having no rights, then at birth all parents would have to convince a judge it is in the child’s best interest for them — instead of some unrelated person or persons — to have custody. Consider especially all those stable, middle-class couples desperate to adopt, and all those poor or less able couples and single women having babies. Imagine judges saying to biological parents: “Children are not property! How dare you try to keep this child for yourself, when his interests would be far better served in another home. He can get to know you and his roots when he is grown.”
From the fact that parents do have rights, moreover, the presumption automatically follows that those rights continue after separation and divorce. The reason: genuine rights, unlike mere interests, can be abrogated only for serious cause. Hence, the burden is on others to prove that any abrogation should occur; creating such a burden of proof is simply what a presumption does. The existing de facto assumption, that the rights of one of the parents shall be terminated, is thus a violation of fundamental human rights.
Of course, parental rights are only part of the equation; the rights of the children can outweigh them. (Political Philosophy 101: mere interests cannot outweigh a right — at best another right can do that.) A presumption that children belong to mothers has traditionally been rebuttable only by the right of a child to be safe from harm — by her being wholly “unfit.” By all rights and all compassion, that presumption belongs to fathers as well.
Usurpation of individual rights by the state
In fact, it is not even possible to eliminate legal rights over children; such rights can only be transferred. There is no escaping the need for some adult(s) to make decisions for underage individuals. Hence any who do so for a given child ipso facto have rights to that child, be they parents or parent-surrogates or judges or bureaucrats. Those who employ the ‘children are not property’ rhetoric in fact regard children as the property of the state.
What makes the traditional divorce system such a moral outrage, then, is the state’s wholesale appropriation of parental rights to itself. Courts have no moral right to “grant” custody — to give away what they do not possess in the first place — but only to intervene where individuals’ behavior has relinquished their moral rights. Only if there is serious fault by one of the parties is giving sole custody to the other one ever justified. That the state is already in the habit of taking away parental rights without just cause does not make the act any less despotic.
That parental legal rights must be equal rights follows from the fact that marriage is supposed to be an equal partnership. That is the idea behind division of financial assets upon divorce. In a traditional-type marriage, for (just) one example, her caring directly for the children leaves him free to pursue financial gain; hence the fruits of his labors belong also to her. But by the same token, his financial caregiving enables her to give in-person care to them; so the fruits of her labors are likewise rightfully his. The idea that sole control should be given to the former “primary caregiver” — the presumption often promoted (but refuted in our other essays) by opponents of parental equality — is as terribly unjust as would be one of sole custody for the former primary breadwinner.
And children’s rights
Finally, it is revealing that those who would have us eschew parental custody rights usually don’t speak of children’s rights, either, just of their best interests. This likewise leaves all such rights in the hands of judges or lawmakers, to assign as they please. But a legal presumption of shared custody between parents after divorce follows as well from the right children have for their needs to be supplied by their parents.
That children have a natural right to the protection and care of both parents has always been recognized by courts and governments; it is the basis of the legal obligations imposed upon them both. (And it is crucial to recognize that this is a right, not an interest. Though it is in your best interest to be given $1M from a judge’s own pockets, no court would order it.) The problem is that courts and governments have gotten into the habit of ignoring children’s natural right to personal support, recognizing only their right to monetary support, where fathers are concerned. Once again, however, being a habit doesn’t make it morally or legally legitimate.
To repeat, only a child’s right to be safe from serious harm — not merely her interest in being rather better off — can legitimately override the rights of a parent. But in fact, children’s best interests are far better served, in a large majority of cases, under the stewardship of both parents. (And the majority of cases is what presumptions are designed to fit.) Both daily observation and a growing mass of sociological research attest to the suffering and emotional disability caused to children by father loss and father absence — with their later consequences in harms such as low achievement, teen pregnancy, juvenile crime and youth suicide. The research also reveals that a pittance of “visitation” with the father helps little. Opposing the equally-shared-custody presumption on grounds of the best interests of children, consequently, is yet another blatant sham.
The workability argument
One argument from opponents of presumptive shared custody does have some merit. It can work “only where parents get along,” they say. However, granting legal status to this concern means one parent can avoid sharing simply by creating conflict — in which case existing prejudices are apt to decide who gets sole custody. Indeed, this tactic is in constant use under current law. But rewarding conflict is not in the best interests of children. (The tactic would be squelched by use of the “friendly-parent rule” — already the law in Canada though ignored by judges: in intractable conflict, give sole control to that parent most willing to accommodate the other one.)
In fact, there is an ironic further reason why the workability argument is ultimately illegitimate: much of the conflict in divorce is caused to begin with by the winner-take-all system of sole custody. Faced with the terrible prospect of losing their children, both parents may fight like wildcats. The fundamental problem with the divorce system as it is now is not that rights are being “emphasized over obligations” (a false claim made by opponents of presumed equal parenting); it is that one parent loses all rights. Only ending fear of that loss, and replacing it with society’s expectation that the two will find ways to work together, can end such conflict.
We all know that conflicts between people can often be overcome. Just as most who could never stand to live together can still cooperate in other spheres (say, in the workplace), those unable to go on living together can continue to share parenting. Hundreds of thousands of former partners who thought they would hate each other forever have learned this lesson. With such helps as co-parenting education and co-parenting plans, most couples in conflict will be able to make it work. And that is what is in the best interests of the children.
The Gender Issues Education Foundation