October 9, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Today I follow Wednesday’s post on the regrettable Professor Robert Emery’s latest attempt to (a) oppose shared parenting and (b) remain relevant to the discussion of children’s welfare post-divorce, via his latest book. I follow it with information provided me by Robert Whiston who is surely the finest blogger on the subject in the U.K. and probably elsewhere. I intend to devote the next couple of posts to Whiston’s information.
I’ve long argued that people like Jennifer McIntosh and Robert Emery are simply fighting a rearguard action against shared parenting. Every effort they make is quickly trumped by more scrupulous scientists who point out the laughable flaws in their research, interpretations of others’ work and often as not, personal behavior. Every time this happens, the opponents of shared parenting retreat, regroup and try another tactic. Such is Emery’s latest book that announces itself as “innovative” and the “wave of the future,” despite the fact that it’s self-evidently neither.
Robert Whiston’s information puts into further perspective the efforts of Emery, McIntosh, et al. It seems that, in September of 2015, the Council of Europe passed a resolution on shared parenting. Here it is in full:
1. The Parliamentary Assembly has consistently promoted gender equality in the workplace and in the private sphere. Major improvements in this field, while still not sufficient, can be observed in most member States of the Council of Europe. Within families, equality between parents must be guaranteed and promoted from the moment the child arrives. The involvement of both parents in their child’s upbringing is beneficial for his or her development. The role of fathers vis-à-vis their children, including very young children, needs to be better recognised and properly valued.
2. Shared parental responsibility implies that parents have certain rights, duties and responsibilities vis-à-vis their children. 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. In its Resolution 1921 (2013) “Gender equality, reconciliation of personal and working life and shared responsibility”, the Assembly called on the authorities of the member States to respect the right of fathers to enjoy shared responsibility by ensuring that family law foresees, in case of separation or divorce, the possibility of joint custody of children, in their best interest, based on mutual agreement between the parents.
3. 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. For a parent and child, the ability to be together is an essential part of family life. Parent–child separation has irremediable effects on their relationship. Such separation should only be ordered by a court and only in exceptional circumstances entailing grave risks to the interest of the child.
4. 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 and is merely a reflection of the sociological changes that have taken place over the past fifty years in terms of how the private and family sphere is organised.
5. In the light of these considerations, the Assembly calls on the member States to:
5.1. sign and/or ratify, if they have not already done so, the Convention on the Exercise of Children’s Rights (ETS No. 160) and the Convention on Contact concerning Children (ETS No. 192);
5.2. sign and/or ratify, if they have not already done so, the 1980 Hague Convention on the Civil Aspects of International Child Abduction and to properly implement it, ensuring that the authorities responsible for enforcing it co-operate and respond promptly;
5.3. ensure that parents have equal rights vis-à-vis their children under their laws and administrative practice, guaranteeing each parent the right to be informed and to have a say in important decisions affecting their child’s life and development, in the best interests of the child;
5.4. remove from their laws any difference based on marital status between parents who have acknowledged their child;
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;
5.9. encourage and, where appropriate, develop mediation within the framework of judicial proceedings in family cases involving children, in particular by instituting a court-ordered mandatory information session, by ensuring that mediators receive appropriate training and by encouraging multidisciplinary co-operation based on the “Cochem model”;
5.10. ensure that the professionals who come into contact with children during court proceedings in family cases receive the necessary interdisciplinary training on the specific rights and needs of children of different age groups, as well as on proceedings that are adapted to them, in accordance with the Council of Europe Guidelines on child-friendly justice;
5.11. encourage parenting plans which enable parents to determine the principal aspects of their children’s lives themselves and introduce the possibility for children to request a review of arrangements that directly affect them, in particular their place of residence;
5.12. introduce paid parental leave available to fathers, with preference being given to the model of non-transferable periods of leave.
Read all that carefully. There’s much good language in the resolution urging member states in the direction of shared parental responsibility and equality of mothers and fathers regarding children and their care post-divorce or separation. Of course language is language and action is action. And action does not always reflect the intention of language. The resolution is one year old. Has it been implemented by member states and if so, how?
I’ll deal more with this in the coming days. For now though, it’s sufficient to remark that the objections of the likes of Emery and McIntosh are nowhere to be found in the resolution addressed to every member state in the European Union. Europe, like much of the United States, is moving on without them.
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