October 20, 2015
By: Ned Holstein, MD, MS,
Founder and Acting Executive Director
In a sign of the changing times, an official European organization known as the Council of Europe (COE) passed a resolution on October 2, 2015 that encourages the European countries to pass shared parenting legislation. The COE does not itself have legislative powers, but its deliberations are considered influential within the parliaments of the members states.
The adopted resolution includes the following provisions: (http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=22022&lang=en)
In light of these considerations, the Assembly calls on the member States to:
- 5.5. introduce into their laws the principle of shared residence following a separation, but under no circumstances in cases of sexual or gender-based violence, with the amount of time for which the child lives with each parent being adjusted according to the child’s needs and interests;
- 5.6. respect the right of children to be heard in all matters that affect them when they are deemed to have a sufficient understanding of the matters in question;
- 5.7. take shared residence arrangements into account when awarding social benefits;
- 5.8. take all necessary steps to ensure that decisions relating to children’s residence and to access rights are fully enforced, including by following up complaints with respect to failure to hand over a child;
(By the way, the author of this resolution will be speaking at the Second International Conference on Shared Parenting described above.)
Even though this action is only advisory in nature, it is another big sign that the battle to reform the family courts is being won. Shared parenting has been implemented in Australia, Sweden, and elsewhere. In the United States, about 20 states are considering shared parenting legislation. In some states, shared parenting is quietly becoming the norm, at least in divorce cases as opposed to never-married cases, without any change in legislation. No state or country that we know of is going in the wrong direction. The opposition from women’s groups is noticeably decreased. The media are increasingly supportive. About the only major organized forces still actively opposing shared parenting are the bar associations, and they are starting to be looked at skeptically.
The action by the COE was passed by an overwhelming vote of 46 to 2. Even more interesting is that the winning arguments were mostly about parental rights and equality, not “best interest of the child.” For instance, the resolution originated in the Committee on Equality and Non-Discrimination. Also, the approved resolution states, “In light of these considerations…” What exactly are the four “considerations” that lead to the resolution?
The first one is gender equality: “Within families, equality between parents must be guaranteed and promoted from the moment the child arrives.”
The second “consideration” is also about parental rights: “The fact is, however, that fathers are sometimes faced with laws, practices and prejudices which can cause them to be deprived of sustained relationships with their children.”
The third “consideration” is also about rights, in this case, about the rights of both children and parents. “The Assembly wishes to point out that respect for family life is a fundamental right enshrined in Article 8 of the European Convention on Human Rights (ETS No. 5) and numerous international legal instruments.”
The fourth “consideration” is about overcoming gender stereotypes — in adults. “Furthermore, the Assembly firmly believes that developing shared parental responsibility helps to transcend gender stereotypes about the roles of women and men within the family…”
Later in the resolution, there are references to the best interest of the child. But most of the document is about equality, suggesting that “best interest of the child” was something of an add-on in response to outside criticism.
National Parents Organization has found that in the United States, arguments for shared parenting that are centered around gender equality, gender stereotypes, the rights of parents, or the rights of children — as opposed to their best interest — meet with stony silence. We find ourselves confined to one main argument — the best interest of children.
We do firmly believe that shared parenting is usually in the best interest of the child if both parents are fit and there has been an absence of significant domestic violence. We further believe this is based on an overflowing cornucopia of research. Still, most of us also believe that shared parenting is demanded by the requirements of gender equality, the elimination of gender stereotypes, parental and children’s rights, and fundamental fairness.
So the resolution of the Council of Europe is a positive sign because it calls for shared parenting, and also because it may broaden the discussion about shared parenting to include gender equality and fundamental rights. Now that’s progress!
Next week: New Developments in the United States.