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Old 05-03-2011, 10:31 AM
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Default The Best Interests of Children: An Evidence- Based Approach

TITLE/TITRE: The Best Interests of Children: An Evidence-Based Approach (Toronto: University of Toronto Press, 2009).

AUTHOR/AUTEUR: Paul Millar

REVIEW/CRITIQUE: Book Review by Gene C. Colman SOURCE/SOURCE: Canadian Journal of Family Law / Revue canadienne de droit familial

CITED/CITÉ: (2010) 26 Can. J. Fam. L. 269 - 277/ (2010) 26 Rev. Can. D. Fam. 269 - 277

1 What variables influence Canadian courts when they grant custody orders? What variables should influence Canadian courts? Is there any empirical data that would inform the policy maker and the decision maker of the need for relevant principles to apply to the decision making process? Paul Millar was most recently a post-doctorate fellow in the department of community health sciences at Brock University. In his new book, The Best Interests of Children, Dr. Millar creatively and expertly makes sense of the available empirical data. The author presents a persuasive and well thought out analysis that explains child custody outcomes in Canada.

2 Proponents of equal shared parenting and their detractors alike revel in citing statistics. Each side of the debate can marshal statistics to support their respective positions. What distinguishes Dr. Millar's work is his expert use of two mega-sample databases, his statistical analysis of those databases, and his effortless explanation of what the data means in common sense language.

3 Dr. Millar applied to the Canadian Department of Justice, pursuant to Canada's Freedom of Information Act. He was able to obtain data from the Central Divorce Registry of the Centre for Justice Statistics (He also obtained additional data from the National Longitudinal Survey of Children and Youth ("NLSCY")). The data that he obtained from Justice Canada included over 2.5 million divorces in Canada between June 1, 1996 and the end of September, 2002. After he excluded some of the data on a variety of grounds, he was left with a sample of 673,450 children and 378,390 cases. He examined the outcome of custody cases according to three categories: no custody, joint custody, and sole custody. The data was further broken down according to multiple variables including the following:

- grounds for divorce;
- number of children;
- child's age at divorce;
- family position;
- region;
- marriage length;
- age difference between husband and wife;
- wife's age at marriage;
- wife's age at divorce;
- gender;
- who was petitioner and who was respondent; and
- whether a contested hearing was held.

4 Dr. Millar also provides us with a basic understanding of the importance of child support to household income. This is the first attempt to gauge the effects of child support on household income in Canada using a representative database. In this case, the source was the Survey of Labour and Income Dynamics ("SLID"), another database maintained by Statistics Canada.

5 Dr. Millar's empirical findings, based on a multidimensional analysis of the data, are nothing less than startling. The statistical data clearly demonstrate that time and again, the custody result seems to be tied to gender no matter what configuration of factors is examined. The clearest predictor of result is gender. For example (see pages 24 - 25), Dr. Millar finds that mothers gain some form of custody (whether sole or joint) in 89% of cases, while men completely lose custody in 67% of cases, although losing legal custody does not necessarily imply they lose all contact with their children. Custody results from this study do not include data on access or contact with the children. They include court orders pursuant to a hearing as well as so called "consent" orders, since divorce negotiations are conducted "in the shadow of the law", that is, within the context of the expected outcome in a court of law. Dr. Millar compares this to a previous 1979 study based on custody data from 1975 (pages 25 - 26) where the results were virtually identical with respect to sole custody situations. It would therefore appear that the 1986 amendments to the Divorce Act had little effect on modifying the effects of gender on sole custody outcomes.

6 Dr. Millar finds that where there is a contested hearing, it improves the chances for sole custody for both parents. The probability for success of mothers, however, is significantly greater, such that fathers have five times less probability of succeeding in gaining custody than do mothers at a contested hearing. The focus of the book is on custody outcomes and the data being analyzed is with respect to custody claims only. The extent of access claimed and granted would surely make for an interesting follow up study.

7 Mothers are approximately 27 times (2,600%) more likely to obtain sole custody than no custody, and have five times greater odds of achieving joint custody than no custody. Most mothers were the petitioner, and indeed, being the petitioner increases the odds of obtaining both joint and sole custody over no custody by 71% and 281%, respectively. Dr. Millar finds that being the petitioner increases the odds of gaining sole and joint custody by 280% and 70%, respectively, independent of parental gender.

8 Dr. Millar's research determines that where the grounds for divorce are physical or mental cruelty, this appears to reduce the chances for joint custody significantly (see page 30). The longer the marriage, the greater the chance there is for joint custody over no custody. The more children there are in the marriage, the less chance there is for an order of joint custody. Millar examines the interplay between gender with: length of marriage, grounds for divorce, and whether a hearing was held. With respect to all three factors, gender has a significantly greater statistical effect on the result, with mothers still having about 142 times greater odds of achieving sole custody and a 12 times greater chance of achieving joint custody, compared to no custody, when there is no hearing, the husband has not filed for divorce on the basis of adultery, and when the marriage was very short.

9 A surprising finding in this respect is that the double standard is apparently alive and well in Canada's courts. If the husband alleges adultery on the part of the wife, the wife's chances of achieving joint or sole custody are reduced by 37% and 58%, respectively. Feminist legal analysis has claimed that where fathers claim custody they tend to achieve that result more often in the courts. Millar found some support for this. The data reveals that a contested hearing reduces the chances of mothers obtaining custody by 8% for joint custody and 16% for sole custody.

10 Millar finds that if the "mitigating factors" of adultery, marriage length, and contested hearing are not present, the mother's chances of obtaining some form of custody would be even higher than the 2600% chance previously noted.
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Old 05-03-2011, 10:31 AM
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11 Faced with the apparently astronomical odds against succeeding in custody claims, it is understandable that fathers have generally declined to contest custody. Until now, we had mostly anecdotal reports that complained of the odds being stacked against fathers. Millar's work conclusively demonstrates that gender definitely plays a role in predicting judicial outcomes, despite the fact that, as Millar observes at page 110: " gender of a parent or caregiver is a poor indicator of parental fitness".

12 Millar notes that the longer the father was married to the child's mother, the greater the chance he has of obtaining custody. He concludes that this was because "the legal definitions of fatherhood are largely based on the father's relationship with the mother as opposed to his relationship with the child". While this writer cannot argue with the statistical correlation, he does take issue with the author's conclusion. It is the perceived relationship between the parent and the child that the court focuses on and not the father's relationship with the mother. Combating perceptions based on preconceived gender roles is the main challenge.

13 The author correctly concedes that mere statistical correlation does not necessarily equal causation. In the middle part of his book, he examines such issues. Drawing upon a wide range of social science literature, the author persuasively demonstrates what other researchers have found: gender does indeed play a strong role in predicting divorce court custody/access outcomes. What is particularly germane to Millar's analysis is his demolition of the Goldstein, Solnit, and Freud1 approach to best interests of children. Goldstein et al.'s primary caregiver trump card approach is shown to be exactly what it is: a non-scientifically based compilation of presumptions that stack the deck against fathers with little, if any, regard to a parent's actual ability to benefit the child.

14 What factors can we look at to predict positive outcomes for children of divorce? Chapter 4 examines empirical data from the NLSCY database to help inform the decision-maker with respect to the factors that should be examined in order to predict positive outcomes for children. Millar finds (at pages 88 - 89) that parental gender is, in fact, not a good predictor with respect to any of the outcomes for children on any axes, whether behavioural, educational, or health. Indeed, as Millar writes at page 110: "[t]he models testing the effect of caregiver gender on children's behaviour, health, and school performance indicate that there is no direct effect of caregiver gender on these outcomes".

15 Not all of Millar's criticisms of our legal system are accurate. For example, he writes at pages 109 - 110 that "the best interest criteria degenerates into judicial discretion, unfettered by any legal restraint save the review of superior courts". Judicial discretion is not as wide as Millar would have us believe. Previous decisions, particularly those of courts of appeal, do fetter the discretion of the lower courts somewhat. Lists of factors to be considered in provincial legislation (not divorce cases) also provide at least some degree of legislative guidance to judges. That being said, it should be abundantly clear that greater direction is required from the legislature under the federal Divorce Act and particularly when we are faced with a system that appears to de facto place undue emphasis on gender.

16 What does affect outcomes for children? Millar notes the factors and the statistics in the studies that appear to have some predictive ability (see page 111):

1. behaviours involving physical punishment;
2. yelling;
3. speaking in a raised voice to children;
4. positive parental interaction with children;
5. consistent setting of boundaries by parents;
6. depression in a caregiver;
7. parent-child ratio within the family;
8. household income; and
9. caregiver education.

One might possibly criticize Dr. Millar for over emphasizing the "custody" aspect and not sufficiently examining the "access" axis. How can such an exclusive focus on custody be justified? The answer is relatively simple. It is a straightforward exercise to measure if custody or joint custody was claimed in a divorce pleading. Similarly, it is easy to see what the result of the case was by looking at the final order. From these observations being joined with other factors as described in the book, the researcher can come to some conclusions based upon fairly clear empirical data. Dr. Millar undertook to examine factors that seem to influence custody orders. He has done an admirable job with mega sized samples of data.

17 Most fathers after all do achieve some measure of access to their children. What is the extent of that access? At what age do courts permit a father to enjoy overnight access? What is the effect of geographical distance between the two residences? Is there any difference between the nature of the access that non-custodial fathers obtain versus the nature of access that non-custodial mothers obtain? Perhaps Dr. Millar or some other academic will accept the challenge and do the empirical legwork to uncover and elucidate the myriad types of access claims and how the courts address the access issue.

18 It is generally accepted that both genders are capable of parenting. Should the result of custody decisions favour the parent who did the majority of the hands on parenting during the marriage? Feminist legal analysis would claim that mothers simply do the majority of parenting during marriage and that all the courts are doing is reflecting that social reality. The criticism would be that all Millar uncovered through his analysis of the data was that the courts reflect back a stark social reality that permeates Canadian society and that social reality should not be ignored to the peril of Canada's children.

19 On the other hand, the argument that pre-divorce arrangements are the primary causative factor that drives the results that Millar reported is also not supported by the evidence - men do nearly half of child care these days. But even if this were not the case, it is not clear that pre-divorce child care should determine post-divorce care, since what is happening is that the father is often being surgically excised from the daily lives of his children. This is just "primary caregiver" in another guise. It is not by any means a continuation of the previous arrangement where both parents saw the children daily and both managed their care. If, for example, the children were looked after by a day care provider (as is common), no one would expect that the custody should be affected by the out-sourcing of hands-on care or that the day care provider or nanny should be considered for custody simply because of hands-on care. The situation after divorce will necessarily be different from pre-divorce arrangements, which should be decided on a best interest standard properly and clearly legislatively mandated.

20 The author concludes that "custody decisions must cease their reliance on gender as their primary determinative factor". While this writer agrees with Millar's conclusion, he parts company with Millar when the author places politically unrealistic expectations on the judiciary to somehow automatically or magically reform its decision making modalities. Millar calls upon "the Courts to renew their relevance". It is the function of the legislature to direct the court as to the appropriate factors to consider when making custody and access orders. Even Millar would agree that these are dynamic political questions which ought not to be delegated to open-ended judicial discretion. The legislature must delineate the guidelines. Dr. Millar's work will hopefully inspire the legislative reform that is so clearly needed to keep pace with the evolving societal gender roles and assumption of parental responsibility in contemporary marriage and post separation/divorce relationships.

* * *
RE AUTHOR:-- Gene C. Colman, B.A., LL. B. [complexfamilylaw.com] practises family law in Toronto. He is a member of the Journal's Advisory Board. The views expressed in this review are entirely his own.
* * *

Notes
QL Update: 20110217
qp/e/qlsls
1 Goldstein, Joseph, Anna Freud, & Albert J. Solnit, Beyond the Best Interests of the Child (New York: Free Press, 1973). Also see their texts Before the Best Interests of the Child (New York: Free Press, 1979) and The Best Interests of the Child (New York: Free Press, 1986).
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Old 05-09-2012, 10:35 AM
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Quote:
Originally Posted by WorkingDAD View Post
TITLE/TITRE: The Best Interests of Children: An Evidence-Based Approach (Toronto: University of Toronto Press, 2009).

AUTHOR/AUTEUR: Paul Millar

REVIEW/CRITIQUE: Book Review by Gene C. Colman SOURCE/SOURCE: Canadian Journal of Family Law / Revue canadienne de droit familial

CITED/CITÉ: (2010) 26 Can. J. Fam. L. 269 - 277/ (2010) 26 Rev. Can. D. Fam. 269 - 277

1 What variables influence Canadian courts when they grant custody orders? What variables should influence Canadian courts? Is there any empirical data that would inform the policy maker and the decision maker of the need for relevant principles to apply to the decision making process? Paul Millar was most recently a post-doctorate fellow in the department of community health sciences at Brock University. In his new book, The Best Interests of Children, Dr. Millar creatively and expertly makes sense of the available empirical data. The author presents a persuasive and well thought out analysis that explains child custody outcomes in Canada.

2 Proponents of equal shared parenting and their detractors alike revel in citing statistics. Each side of the debate can marshal statistics to support their respective positions. What distinguishes Dr. Millar's work is his expert use of two mega-sample databases, his statistical analysis of those databases, and his effortless explanation of what the data means in common sense language.

3 Dr. Millar applied to the Canadian Department of Justice, pursuant to Canada's Freedom of Information Act. He was able to obtain data from the Central Divorce Registry of the Centre for Justice Statistics (He also obtained additional data from the National Longitudinal Survey of Children and Youth ("NLSCY")). The data that he obtained from Justice Canada included over 2.5 million divorces in Canada between June 1, 1996 and the end of September, 2002. After he excluded some of the data on a variety of grounds, he was left with a sample of 673,450 children and 378,390 cases. He examined the outcome of custody cases according to three categories: no custody, joint custody, and sole custody. The data was further broken down according to multiple variables including the following:

- grounds for divorce;
- number of children;
- child's age at divorce;
- family position;
- region;
- marriage length;
- age difference between husband and wife;
- wife's age at marriage;
- wife's age at divorce;
- gender;
- who was petitioner and who was respondent; and
- whether a contested hearing was held.

4 Dr. Millar also provides us with a basic understanding of the importance of child support to household income. This is the first attempt to gauge the effects of child support on household income in Canada using a representative database. In this case, the source was the Survey of Labour and Income Dynamics ("SLID"), another database maintained by Statistics Canada.

5 Dr. Millar's empirical findings, based on a multidimensional analysis of the data, are nothing less than startling. The statistical data clearly demonstrate that time and again, the custody result seems to be tied to gender no matter what configuration of factors is examined. The clearest predictor of result is gender. For example (see pages 24 - 25), Dr. Millar finds that mothers gain some form of custody (whether sole or joint) in 89% of cases, while men completely lose custody in 67% of cases, although losing legal custody does not necessarily imply they lose all contact with their children. Custody results from this study do not include data on access or contact with the children. They include court orders pursuant to a hearing as well as so called "consent" orders, since divorce negotiations are conducted "in the shadow of the law", that is, within the context of the expected outcome in a court of law. Dr. Millar compares this to a previous 1979 study based on custody data from 1975 (pages 25 - 26) where the results were virtually identical with respect to sole custody situations. It would therefore appear that the 1986 amendments to the Divorce Act had little effect on modifying the effects of gender on sole custody outcomes.

6 Dr. Millar finds that where there is a contested hearing, it improves the chances for sole custody for both parents. The probability for success of mothers, however, is significantly greater, such that fathers have five times less probability of succeeding in gaining custody than do mothers at a contested hearing. The focus of the book is on custody outcomes and the data being analyzed is with respect to custody claims only. The extent of access claimed and granted would surely make for an interesting follow up study.

7 Mothers are approximately 27 times (2,600%) more likely to obtain sole custody than no custody, and have five times greater odds of achieving joint custody than no custody. Most mothers were the petitioner, and indeed, being the petitioner increases the odds of obtaining both joint and sole custody over no custody by 71% and 281%, respectively. Dr. Millar finds that being the petitioner increases the odds of gaining sole and joint custody by 280% and 70%, respectively, independent of parental gender.

8 Dr. Millar's research determines that where the grounds for divorce are physical or mental cruelty, this appears to reduce the chances for joint custody significantly (see page 30). The longer the marriage, the greater the chance there is for joint custody over no custody. The more children there are in the marriage, the less chance there is for an order of joint custody. Millar examines the interplay between gender with: length of marriage, grounds for divorce, and whether a hearing was held. With respect to all three factors, gender has a significantly greater statistical effect on the result, with mothers still having about 142 times greater odds of achieving sole custody and a 12 times greater chance of achieving joint custody, compared to no custody, when there is no hearing, the husband has not filed for divorce on the basis of adultery, and when the marriage was very short.

9 A surprising finding in this respect is that the double standard is apparently alive and well in Canada's courts. If the husband alleges adultery on the part of the wife, the wife's chances of achieving joint or sole custody are reduced by 37% and 58%, respectively. Feminist legal analysis has claimed that where fathers claim custody they tend to achieve that result more often in the courts. Millar found some support for this. The data reveals that a contested hearing reduces the chances of mothers obtaining custody by 8% for joint custody and 16% for sole custody.

10 Millar finds that if the "mitigating factors" of adultery, marriage length, and contested hearing are not present, the mother's chances of obtaining some form of custody would be even higher than the 2600% chance previously noted.
Am I reading this correctly...if a father claims the mother had an affair....this could be helpful in his case for joint custody??
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Old 05-09-2012, 11:07 AM
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Quote:
...if a father claims the mother had an affair....
No, you are reading too much into it.

What the statistics show is a correlation, not cause and effect. A correlation is a situation where "A" increases and "B" seems to proportionately increase along with it.

Cause and effect cannot be demonstrated by a study like this. People wish it could because doing so would support their pet projects, so you will often see cause and effect implied, especially in the wording of a media article. If you read a retrospective, observational study where the researcher claims cause and effect are shown, you first of all know that the study is garbage, and you secondly know that you will lose credibility if you try to use the study to support your own cause.

Why can't cause and effect be shown? Because there are hidden factors that may, and probably are, affecting both the charge of adultery and the custody result. Very likely other behaviour by one or both parents, level of conflict within the relationship, etc., is what brings forth the charge of adultery. So for example an adulterous parent has been out of the home, away from the family, possibly moved away to be with the lover, causing the break up. It likely also affects the feelings of the child for that parent.

So your statement, "...if a father claims the mother had an affair...." is not the indicator of the effect. The father can claim anything. What has to be shown is that the children's lives are affected. Making a claim is not a shortcut to getting the result that you want.
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Old 05-09-2012, 11:23 AM
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While this certainly was an interesting read, as with any sort of mega-data study, my primary question relates to the data source.
Quote:
The data that he obtained ... over 2.5 million divorces in Canada between June 1, 1996 and the end of September, 2002.
After he excluded some of the data on a variety of grounds, he was left with a sample of 673,450 children and 378,390 cases.
So 378,390 cases studied, out of a total population (of cases) of 2.5 mil = 15.1%. I will admit that a 15% study group is a decent size, but on what grounds were the other cases excluded? Was this a "random sampling" of the total possible cases? How was the random sampling achieved?

I remember from Stats that it is really easy to get the data you need to support your results - especially in such a large sampling..... It is entirely possible to show bias even in a "random" sample....

BUT.....

The raw data aside, the other thing I have seen (especially since coming here) is that there seems to be more of a trend of dad's finally waking up to the reality that they can have more than joint custody too! When I was in high school, having two homes (mom's and dad's) seemed to be the norm and no one primarily lived with dad.... There are at least 100 years of Sociologist and Psychologist to overcome as well.... their data and hypothesis were fine for their era, but time's are finally changing and men need to speak up and step up to the plate! I for one fully support and encourage dad's to be a lot more active in their children(s) lives than they "typically" have been in the past.

For those dad's out there that sit back and point the finger at "The System Bias", what did you do to change it? Did you fight? Did you even speak up? No one ever claimed getting a century of bias changed would be easy, but did you even try?! Studying Women's History, I know it's not easy - women had to fight against "The System" to earn the right to vote, to work, to have a voice.... Now it's your turn to step up!

In reading member's stories about how they fought, and won, they are shining examples that it's totally possible - you just have to have the courage to DO IT!!



((stepping down off my soap box))
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Old 05-09-2012, 06:08 PM
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Originally Posted by cbarker78 View Post
While this certainly was an interesting read, as with any sort of mega-data study, my primary question relates to the data source.

So 378,390 cases studied, out of a total population (of cases) of 2.5 mil = 15.1%. I will admit that a 15% study group is a decent size, but on what grounds were the other cases excluded? Was this a "random sampling" of the total possible cases? How was the random sampling achieved?

I remember from Stats that it is really easy to get the data you need to support your results - especially in such a large sampling..... It is entirely possible to show bias even in a "random" sample....

BUT.....

The raw data aside, the other thing I have seen (especially since coming here) is that there seems to be more of a trend of dad's finally waking up to the reality that they can have more than joint custody too! When I was in high school, having two homes (mom's and dad's) seemed to be the norm and no one primarily lived with dad.... There are at least 100 years of Sociologist and Psychologist to overcome as well.... their data and hypothesis were fine for their era, but time's are finally changing and men need to speak up and step up to the plate! I for one fully support and encourage dad's to be a lot more active in their children(s) lives than they "typically" have been in the past.

For those dad's out there that sit back and point the finger at "The System Bias", what did you do to change it? Did you fight? Did you even speak up? No one ever claimed getting a century of bias changed would be easy, but did you even try?! Studying Women's History, I know it's not easy - women had to fight against "The System" to earn the right to vote, to work, to have a voice.... Now it's your turn to step up!

In reading member's stories about how they fought, and won, they are shining examples that it's totally possible - you just have to have the courage to DO IT!!



((stepping down off my soap box))
Quick correction on a statement you made in general...

1. Legally not up until a while ago children were considered chattels and the legal property of fathers.

2. The trend of sole custody to the mother is a recent historical balance over-correction in social thinking possibly.

You are correct to say that the imbalance is swinging back to the middle.

Good Luck!
Tayken

Last edited by blinkandimgone; 08-03-2012 at 09:39 AM. Reason: by request
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Old 05-09-2012, 06:30 PM
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Thanks for sharing this...
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Old 05-09-2012, 07:46 PM
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great post workingdad!
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Old 05-09-2012, 08:17 PM
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great post workingdad!
Yea! about a year ago
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Old 05-10-2012, 08:50 AM
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Thanks... Just ordered the book.

Here'a review I found of the book for those that are interested.
http://ohlj.ca/english/documents/13_...put_June22.pdf
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