Fabricius Completes the Argument for Equal Parenting

May 27, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

In his paper written for publication in a hard-copy book to be published by the Oxford University Press in October, William Fabricius goes on to other considerations that militate in favor of a presumption of equal parenting to be written into family law.

He points out that, whatever our culture may have favored 50 years ago, it now supports children having as much time as possible with each parent following divorce.  In that, We the People once again demonstrate ourselves to be smarter and more humane than elites who govern- and not occasionally decide what’s good for – us.  I of course have reported many times on the increasing number and variety of surveys demonstrating popular support for equal parenting.

In connection to the long-term historical trend toward gender equality and involvement of fathers in child care, there is now consistent evidence of a strong public consensus that equal parenting time is best for children. The first indication of this consensus was found by Fabricius and Hall, who asked college students, ”What do you feel is the best living arrangement for children after divorce?”. Regardless of how the question was phrased over the course of several semesters, whether students were male or female, or from divorced or intact families, approximately 70% to 80% answered, “equal time”. Subsequent surveys have found that large majorities favor equal parenting time in all the locales and among all the demographic groups in the United States and Canada in which this question has been asked, and across several variations in question format, including variations that ask respondents to consider differences in how much pre-divorce child care each parent provided, and differences in parent conflict.

I hate to break it to Dr. Fabricius, but he and Hall aren’t the first ones to find a strong preference for equal parenting time.  For at least two decades, reaching back into the 90s, Canadians have responded to surveys with strong support (in the 70% – 80% range) for equal parenting.  Here in the U.S., that support crosses all demographic boundaries of race, class, educational attainment and political affiliation.  Indeed, it would be difficult to name an issue with such broad-based popular support that enjoys so little elite support.  Offhand, I can’t think of any.

Fabricius goes on to briefly summarize the state of equal parenting laws in the U.S. and Canada.  To date, there’s only one state – Kentucky – that has a statute requiring the presumption of equal parenting time.  But the momentum toward equal parenting becomes clear when we look at the larger picture, which Fabricius does.

Arizona law doesn’t presume equality, but courts and attorneys assume that its language has that intention.  For several years now, Arizonans have had the benefit of that de facto equal parenting law.  Other states, like Wisconsin, Louisiana, Nevada and Alaska are edging toward equal parenting.

In Canada, there is no law requiring equal parenting, but a series of judicial precedents seems to be heading in that direction.  Statute law established the “maximum contact” rule and courts seem to be taking heed.

At least 34 cases have used the maximum contact principle to order equal parenting time. For example, the Saskatchewan Court of Appeal in Ackerman v. Ackerman (2014) noted that, although there was no presumption in favor of shared parenting by the maximum contact principle, “maximum contact between a child and each of his or her parents is desirable,” and upheld the trial judge’s alternating-week equal parenting time order.

In Fraser v. Fraser (2016), Justice McGee noted, “Ongoing relationships with each of one’s parents is a right. When a parent argues for unequal parenting time, the onus is on that parent to demonstrate why the proposed schedule is in the child’s best interests.”

Shifting the burden of proof to the parent opposing equal time is, by itself, a landmark.  The importance of which party bears the burden of producing sufficient evidence to overcome what is in fact, if not in law, a presumption can scarcely be overstated.

Indeed, one judge encapsulated the arguments for equal parenting very nicely.

I do not [order equal parenting] in an attempt to be fair to the parents, but rather because it will allow for more meaningful interaction between the children and both parents, particularly the father. It will, in my opinion, be better for the children’s mental, emotional and physical health; reduce the disruption in the children’s sense of continuity; foster the love, affection and ties that exist between not only the children and parents, but the children with the paternal grandmother and with the extended families of both parents; and will provide the children with a secure environment.

Those are the words of a judge who’s been properly educated in the science of equal parenting.  Too bad there aren’t more of them.

Fabricius ends with a call for a presumption of equal parenting.

As Joan Kelly has pointed out, the current child custody statutes were written in the absence of evidence of how well they promoted children’s well-being. The evidence that is now available is compelling that failure to enact presumptions of equal parenting time risks unnecessary harm to children’s emotional security with their parents, and consequently unnecessary harm to public health in the form of long-term stress-related mental and physical health problems among children of divorce.

I couldn’t have said it better myself.

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