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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 04-25-2009, 07:58 PM
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Default Faulty to assume Shared Parenting: here's why

The main priority for any family should be the children. While the arguement could be that the two parents simply dissagree about what is best for the child, in my research and experience I do not hear enough discussion of the child’s needs but hear more about the needs of the parent. Is the argument that the time with the non primary parent is more important that the stability and consistency and predictability for the child? It goes without saying that Gender itself should not determine the residence and time with the child.

Parenting time: Decisions should be made based on an attempt to make as little changes to the child as possible. The child’s life should be predictable and reliable and should also be based on the child’s age. If a child has a primary caregiver then it should be determined so and respected. (Note: Let's not debate sematics of this description of the person who has been the most and significantly involved in the child's life. Even in law if it not written, the judge still understands it to be de facto, by the amount of parenting time for instance. So, Semantics aside...) The primary caregiver of a small child for example should continue to do so with the child having a reasonable amount of time away from that primary caregiver, preferably a schedule that closely reflects what they are accustomed to.
If It is determined that the child/ren would be suited for an equal time sharing schedule, then one must ask if the parents are able to do that. One suggestion would be to start with a primary care arrangement and then through manditory counselling teach the parents how to get along. Once the parents have achieved and proven their ability to communicate well without conflict, then a shared parenting would and should be welcomed. At no point do I think there should ever be an assumtion of shared parenting legislated. Each case should be determined on an individual basis and focusing not on the needs of the parents to have equal "control" over their child but on what would be best for the child and what arrangement would be the easiest transition for them.

Parenting arrangement, ie "Joint or shared decision making": An arrangement with parents should be done so without the assumption that the parents will be able to communicate well. A shared parenting arrangement or even a joint parenting arrangement requires more cooperation, friendliness and mutual respect that was very likely there within the relationship and probably not there even more so in the separation. If the parents are unable to get along, then a shared parenting arrangement just puts the child in the middle. And would not be in the childs best interest. To make that legislation is faulty.

Main residence: Joint parenting, and shared parenting, are relatively new concepts. There has been little evidence to determine the long term effects on children in shared parenting. What is the cost if the children are used as frizbees between homes, and dealing with the uncertainty of a difficult schedule, and being in between hostile parents forced to communicate without the skills or resources? Most of us grew up with a main residence. I would argue that stability of the homelife would be key. One should know where to hang their hat. That being said, if the parents and the children are suited to having two home bases, then they should be able to do so, and will be healthy.

Possible solutions: court is never a good solution. So legislation is not a good solution. Parents are often stuck in a paradox: can’t make a decision on their own, too much hurt and conflict, no one to help them make a decision on their own, no one to help them gain the respect and communication skills required to avoid court. (mediation is a good alternative, but not when there is a power imbalance. Counselling would have to come before mediation). The parents, in applying for help to find a solution and in applying to court, are forced to retain a lawyer. The lawyer is good at law and court, but again, court is not in the best interest of the parents or the children since it almost never results in a fair solution for all people involved, children included.

Therefore my suggested solution is to focus on lobbying for free marital, preseparation and separation counselling. The main goal of the court is to keep you out of court. And one way or another, for the best interest of the child, both parents must learn to get along, and get along well. No matter what the parenting arrangement. So, the better one gets along with their ex spouse, the more likely that time with the children will be easier. On everyone. In the best interest of the children, I propose that we must demand for more health resources such as counselling, to encourage parents to heal, to be friends if they want to or are able, to set a good example for their children, and to put the child first. If the parents are able to communicate then they may be more able to make their own parenting arrangements. Its possible with the right assistance, (caveaot being abuse, of course) that both parents can find a flexible schedule, which allows for stability for the children without having to miss their other parent, without the absent parent being heartbroken, and the parents become alies. Maybe even friends, if they are lucky. Perhaps, they will be better people and better to eachother, and not worse, that they were when they were together.
In that case, sharing time with the children would be more possible, with both parents around with little or no hostilty and to teach the child about inclusiveness, and not to exclude someone you care about. They should be able to have both their parents, or either of them, when the child needs it. And that would make for the ultimate goal: a happy and healthy child who won't repeat their parent's history.
Then, Alternative solutions could be more easily found, like the “bird’s nest” concept. Or finding more time during the week, and sharing the work load. If one person wants to change something, then the approach required is total teamwork, even more so than if they were married. And even in such often contemptuous areas such as relocation. As I said and which most case law supports: both parents would have to get along better than they did before for shared parenting to work. So, they require the resources to do so.
Enforcement: support is difficult to enforce and court enforcement of access usually results in punishing the child or using them as a tool, ie, taking away care and control of the child by the primary parent. I would argue that the court solution is not the best one. The court would agree with me.*Also: An assumption of shared parenting disregards situations of abuse (which is very difficult to prove) and would require litigation, a sport for the rich, and one that creates more hostility between the parties.


Money or support should be a table amount based on equalising the incomes of both parents to make it fair. A 2 bedroom apartment does not cost less if you have the child for half the time, for example. Support should be a table amount and based on income, not time with the child.

To sum up: more rehabilitate, less legislate.

Hurt is hurt. The time that the child is away from the primary parent may hurt just as much as the time the child is away from the non primary parent. Time spent does not in itself determine who hurts more. It also does not determine who is valued or more important or in the eyes of the child. No matter whether the time shared is 50/50 or a "traditional access schedule, both parents are equally valuable in the eyes of the child. To argue the opposite would only to argue that the parental ego is more important than the individual needs of the child. The time with both parents should be reasonable, and determined by the child’s age, routine and needs.
We must find more respect and compassion, to change this cycle. If people continue to have such hositlity for their former partners, then eliminating conlict between the parents outweighs time and forced communication with the parents. Legislation doesn't change that. Social programs do.
Respect, forgiveness and compassion. In that order.
*It should be noted, that the UN last October (2008) recently reprimanded Canada for its unequal treatment of women in the family court and for not living up to its promise of equality for women. Upon presentations by many groups including the government, The UN recognised that the pendulum has swung too far the other way, which has created unequal treatment in law, has created a double standard, and taken away women's rights in the process. An assumption of shared parenting would go against the UN's recomendations for fair and equal treatment.
Thank you.
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Old 04-25-2009, 10:33 PM
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A very detailed and thoughtful post with many great ideas including the need to focus more energy on the children with respect to their parents coping with a broken relationship as it effects the children.

Unfortunaltey the purpose of the post is simple and biased toward the primary care giver during the marriage. To say that legislated shared parenting as the DEFAULT custody upon the breakup of a-marriage is not in the best interests of the child and is an unfair policy toward woman is misguided.

The whole basis of a just system is innocent until proven guilty. Yet the writter woiuld have us say that one must PROVE they are a capable parent before they can obtain shared custody away from the primary care giver during the marriage. Keep in mind that what some would call the 'primary care giver' during a marriage is not the one soley rasing the children, but is doing so in a very close relationship with the other parent who is involved to a high degree with the raising of the children during the marriage. To suddenly assign sole custody to one of the parents is actually more disruptive to most families and enslaves the other parent to work for the benifit of the family but not have the benifits of actually raising their own kids. The marriage ends, things will change, including the roles of the parents, why must the change be more child involvement for the one who already had more, and less for the other. It does not make sense from a fairness point of view nor from the childrens point of view.

The whole point of defining shared custody as the default is to say for the most part anyone is capable and usually desires to be the parent to their own child which only shared custody supports. Any other situation must be agreed upon by the parents, or forced upon through legal means to seek what is best for the children, as only an independent party can determine this.

There are two quotes in the post that clearly show bias in favour of the primary care giver.

Quote:
Originally Posted by SilverLining View Post
An assumption of shared parenting disregards situations of abuse (which is very difficult to prove)...
The statement says that it is hard to prove abuse so we had better give the kids to the primary care giver. This of course is ridiculous because what if the primary care giver is the abuser? A shared parenting system would level the effects of being with one bad parent. If there is abuse of the children, then like in any parenting situation, it must be PROVEN to be true for the parents rights to be taken away. To assume the non primary care giver is more likely to be an abuser is unjust in the extreme.

Quote:
Originally Posted by SilverLining View Post
An assumption of shared parenting would go against the UN's recomendations for fair and equal treatment [of womem].
How on earth could the assumption that both parents are capable of being parents be unfair treatment of women????

In summary, the point is that we must assume, not based on gender, not on who stayed home more with the kids, not on anything, that both parents have a right to be a parent if they decide and to take away that right must be proven to a judge. Simple, fair, unbiased, gender neutral. Innocent until proven guilty combined with the right for a person to raise their own children.

Last edited by billm; 04-25-2009 at 10:38 PM.
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Old 04-25-2009, 11:43 PM
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Billm,
Thank you.

FN
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Old 04-26-2009, 09:21 AM
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SilverLining,

Interesting opinion. Do you have any sort of research, caselaw etc to support your stance?
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Old 04-28-2009, 03:07 PM
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Good post Billm. I agree. Right now my partner is having to prove that he can be a father to his children although he has been one up until this point. It is sad. I like the way you think.
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Old 04-29-2009, 08:51 PM
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You're essentially arguing in favour of something called the "tender years doctrine", which says, for children 13 years and younger, custody should be placed with the mother. But the Tender Years Doctrine has been discredited and out of favour for more than 20 years. Some argue for the gender-neutral "primary parent" concept, but given your references to women's rights, clearly your understanding of "primary parent" is pretty much limited to mom.

I have a big problem with the term "primary parent", anyway. That's a term invented solely for the purpose of making a point. Is there a secondary parent, then? We don't use such silly terms for in-tact families, why should we use them for divorced families? In my experience, there's no such things as primary and secondary parents -- just parents that have different roles, styles, personalities, and functions in the family. And I can't see any reason why children shouldn't benefit from both.

Further, I have done tons of research about how much time children should be spending with each parent post divorce. The overwhelming and almost unanimous consensus can be summarized in one word: lots. There is very little dispute now that children typically have the best shot at doing well when both parents are involved and spending as much time as possible with their kids.

There are, of course, exceptions. That's why I would support an assumption of shared parenting, but not a mandate. Naturally shared parenting is a bad idea in some situations.

Quote:
Parenting time: Decisions should be made based on an attempt to make as little changes to the child as possible.
I strongly disagree. Children experience change far more often, and far more easily, than adults do. Change for children is almost constant, and they show a remarkable resiliency and adaptability. They're not made of porcelain.

Quote:
There has been little evidence to determine the long term effects on children in shared parenting.
That's not true. But more importantly, there's been an avalanche of evidence outlining the effects on children when fathers are underinvolved. Did you know that 2-3 years after divorce, 25% of children do not see their fathers? And 2/3 of children from divorced families missed not having their fathers more involved; 47% wanted more time with their fathers, and 1/3 questioned whether their fathers loved them.

Quote:
The main priority for any family should be the children.
Agreed!

Quote:
...the UN last October (2008) recently reprimanded Canada for its unequal treatment of women in the family court and for not living up to its promise of equality for women....that the pendulum has swung too far the other way, which has created unequal treatment in law, has created a double standard, and taken away women's rights in the process. An assumption of shared parenting would go against the UN's recomendations for fair and equal treatment.
Hey, I thought this was supposed to be about the children!
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Old 07-24-2010, 12:27 AM
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Sory, but everything is not black and white and every situation is different. I would say I am the primary caregiver, now and during my so called marriage. Someone who constantly spends their time in the basement, alone, drinking and watching tv, only coming upstairs to eat, crap and sleep, and saying hi to his baby durring commercials is NOT a primary caregiver. Also with regards to the so called effects on children who do not have their fathers active in their lives, is not always the case either. My daughter from a previous relationship was raised solely by me for her first 5 years, and maybe saw him every 3rd weekend for 3 years and now only about 1x per month and she is a very well adjusted teen, happy, loving, excellent grades, respectful, pleasant, outgoing and has an excellent well mannered friends.
Also, a spouse who mentally, verbally and emotionally abuses his wife is not in the best interests of the child, my mental health is in my childs best interest and constantly being harrassed by him is not helping me to be the best parent to my child. Someone calls you and yells at you because your child has a fever of 38.9 and visitation is cancelled and threatens you and you call the police. How is this behaviour, which is not just between me and him, in the best interests of the child? Who is protecting the abused spouse?? CAS (who has been involved) now looks at spousal abuse in thier cases, so that would mean that spousal abuse/domestic violence is not in the best interests of the child and can harm the child emotionally. If the abusive parent cant keep thier mouth shut and behave, then they should not have 50/50 custody, they are not concened about the effects of thier behaviour on the parent of their child and the effects of this behaviour on their child. A stressed out parent is not good.
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Old 07-24-2010, 09:18 AM
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Quote:
Someone calls you and yells at you because your child has a fever of 38.9 and visitation is cancelled
Depending on circumstances, I would be careful about this. You cannot just unilaterally cancel visitation. If the other parent wants to spend time with his child, cleaning up puke and god only knows what else, you don't really get to just up and "cancel" on him. I have 4 children, their mother had a schedule visit where 1 of the children was vomiting, 1 had just stopped the night before, and the other 2 had not gotten sick yet. I gave her the choice to either modify her plans to accommodate the baby being sick, OR to make it up later.

If you give them the choice and they force the child into the access while sick,then that is something you document and bring up. If it happens enough time you can try to vary the existing order based on the other party not having the children's best interest in mind.

On the other hand if YOU deny access, then you can very well face allegations of not allowing the other party to be a parent. If it happens enough time, you may find the roles reversed.

Quote:
If the abusive parent cant keep thier mouth shut and behave, then they should not have 50/50 custody
And who makes the determination whether they are behaving or not? To whose standards to they need to behave? Again, this is an inflammatory statement and acting with this in mind is not in the child's best interests. Unless the other parent is a danger to the child, or a flight risk, then the child has a right to have that parent in their lives.
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Old 07-24-2010, 10:17 AM
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When your child is just 11 months old, has been up all night and is sleeping at the time of pick up, yes I have that right. I called and emailed him to let him know at 7am that morning that she was sick and was sleeping and it would be best for the baby to stay home that day and I would notify him later if the baby was feeling better for the next days visit. Would you want to be moved when your sick??? After you have been up all night? Sweating and feverish? Would you want to go in a car only to be moved around? I think not, I always think of my children first.

Quote - "If the other parent whats to clean up puke", thats not in the childs best interest, that is only what the parent wants, thats in the best interest of the parent. Besides, he has no right to call and yell, scream and pull a tirade and threaten because of it, I called the police, and childrens aid became involved and they all said I did the right thing. But I do understand what you are saying as well, I am carefull about this and think things through, I ask others for advice and know I am doing the right thing. I just wish people would look at the other side a little more seriously and realize its not always best to have it 50/50.

The police and childrens aid determines whether they are behaving. and so do I. I think I know what abusive behaviour is and it is not acceptable. If you ask childrens aid, spousal abuse IS child abuse! I am putting my childrens best interests in mind when it comes to being abused by my soon to be ex husband. Parenting is a priveledge, not a right. anyone can be an egg or sperm donor, doesnt mean they should automatically have the right to parent. that is coming from a sense of entitlement and possession - that is mine therefore I should have the right to..... Bull!! Abusing your spouse is a danger to the child, it is a danger to their self esteem and their mental/emotional health. My statement is acting in my childrens best interest, I dont want them to be abused by him anymore, he has in the past. I will protect my children with everything I have and those who dont like it, well....

I am just sick and tired of all these statement where people go off and state it should all be 50/50. When you have walked in my shoes you would say different.
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Old 07-24-2010, 10:28 AM
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Have to add that I just got pissed off reading these since I read one persons post that if you dont think parenting should be 50/50 then you should be shot... something like that, I cant find it. Its narrow minded, one sided thinking like this that irks me. People who state things like this have no life experience, or very little. So go ahead and shoot me.
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