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  • Why 'shared' custody?

    All the discussion and dissention around the shared custody issue has got me to thinking about this: How many of the NCP's who file for shared custody do you think do it for the RIGHT reason.. actually WANTING to be a parent as much of the time as possible??

    Ok, obviously no one will be open to admitting that if their child support obligation was not affected they wouldn't want shared custody, so we'll probably never get a realistic answer to this question, but I know the courts were absolutely flooded with NCP's claiming they had the kids 40%+ when it became a definitive determining factor for CS amounts.

    In addition to those looking for reduced CS and additional tax incentives, there are those who're looking for revenge against their ex, and those looking for some 'fear-leverage' to get a favorable settlement.

    I'm thinking that while there are many NCPs who genuinely WANT to play a larger role in parenting than just exercising access would afford them, there are many more than most people realize who are working for their own agenda, and not that of the kids' best interests. The same thing likely holds true for a lot of people who were not the primary caregivers within the marriage, but are now seeking access time that exceeds that which they ever spent with the children when the marriage was intact.

    What do you think?

  • #2
    I think you simply need to re-title your post to "Why NOT shared parenting" and then apply your same reasoning - yet in reverse.

    Regardless of motives, the key difference in the two scenarios; children are shared equally with their parents and both parents have equal say. To me, that should be the default right of all children and all parents.

    Comment


    • #3
      I'm thinking that while there are many NCPs who genuinely WANT to play a larger role in parenting than just exercising access would afford them, there are many more than most people realize who are working for their own agenda, and not that of the kids' best interests. The same thing likely holds true for a lot of people who were not the primary caregivers within the marriage, but are now seeking access time that exceeds that which they ever spent with the children when the marriage was intact
      My experience as a mediator is that both parties carry a position into the mediation process - or, as you call it, an agenda. The 40% rule of the child support guidelines (which is now hopefully a thing of the past) often placed either parent in a position of wanting to collect support and not be agreeable to shared parenting and the opposite for the other parent.

      When we talk about the term "primary care" it's important that it is a term that has no real meaning under law and therefore, one or both parties are placed in a position of having to assert that they were the primary caregiver and the other parent was not. This creates conflict and tension. The term in itself is problematic - for what is the unit of measurement in determining primary care? Is it a division of household labour? Is it the number of hours/day either parent spends with the kids?

      What generally happens is that the use of the term, being purely open to interpretation, compells many a family court judge to defer to his/her values in defining the term - perhaps this is one of the reasons why father's rights activists claim there is a bias in the system.

      The power of language during a divorce dispute cannot be understated. As with "primary care", two other words that do have meaning under the law tend to in my personal opinion act to increase conflict, namely "Custody" and "Access". I don't like these terms - never have. But people sure fight to ensure that language is written into a Consent Order of a separation agreement.
      Last edited by Divorcemanagement; 05-16-2006, 05:51 PM.

      Comment


      • #4
        With my own first hand experience;

        I have a shared 50-50 custody regime in place for a number of years. "Our" child is thriving having BOTH parents equally involved in their life in a meaningful way.

        Child support is not an issue. Tabled amount of CS is paid. In addition, I provide a home for our child. I am always purchasing clothing, and items that our child requires. Our child is free to bring these items back and forth between the homes. I also pay 100% of dental and I also provide an extended health benefit.

        I believe the majority of people are very sincere and desire to be actively involved in their children's lives in a meaningful way. They don't want to be marginalized out of the child's life to a few days a month when they and the child were use to seeing each other every day. How can this be in the child's interest to do so. I don't think payable child support reduction has much to do with it. Shared custody regimes actually cost MORE money.

        Ultimately is the child's best interest that will determine the custody regime.

        LV

        Comment


        • #5
          Originally posted by Divorcemanagement
          My experience as a mediator is that both parties carry a position into the mediation process - or, as you call it, an agenda.

          What I'm referring to when I say "agenda" is a purpose suiting oneself as opposed to a purpose of unselfish goals... ie. that of the children's best interests.


          Originally posted by Divorcemanagement
          When we talk about the term "primary care" it's important that it is a term that has no real meaning under law and therefore, one or both parties are placed in a position of having to assert that they were the primary caregiver and the other parent was not.

          While I did read that DecentDad hates the term, it is a term that describes a situation that is relevant. Change the term, whatever.. most of the time it is very obvious who was 'primary' in the child/children's care.


          Originally posted by Divorcemanagement
          What generally happens is that the use of the term, being purely open to interpretation, compells many a family court judge to defer to his/her values in defining the term - perhaps this is one of the reasons why father's rights activists claim there is a bias in the system.

          Sean, your personal values are coming through here; what is your stance as an unbiased moderator?

          Comment


          • #6
            Originally posted by logicalvelocity
            Ultimately is the child's best interest that will determine the custody regime.

            LV

            Yes, IF the system works the way it's designed to. I think many people abuse the system, and it's evident in the flood of cases the courts were hit with when the 40% rule came in, don't you think?

            Comment


            • #7
              Sean, your personal values are coming through here; what is your stance as an unbiased moderator?
              My stance is that I have an opinion and personal values - though I am a moderator, it doesn't preclude me from stating an opinon or expressing my values. Interestingly, family court judges also have opinions and values - those opinions and values often shape their decisions... it's an inescapable fact.
              Last edited by Divorcemanagement; 05-16-2006, 06:36 PM.

              Comment


              • #8
                here go again

                The answer is simple, it is what is most fair to the children. Every reason you give for NCP wanting custody can be used the other way around for the custodial parent wanting custody. I can't even imagine why it would be any other way. Shared custody really works. (If one parent or the other doesn't try to sabatoge it....)

                Comment


                • #9
                  Originally posted by sasha1
                  While I did read that DecentDad hates the term, it is a term that describes a situation that is relevant. Change the term, whatever.. most of the time it is very obvious who was 'primary' in the child/children's care.
                  I dislike the term because it is a term of litigation. It is term of a person with an agenda. It is one of my red flag words that means you are in for a bumpy ride.

                  It is only used in custody and access wars. As I stated, it is a check box of great weight in swaying a judge's opinion. So off everyone goes defining who and what a PG is, all at $250 per hour.

                  Your opinion of what is revalant to your child may be completely different from your ex's opinion what is revalant to your child. And as Sean states, you get into all kinds of goofy wars like; Hey I changed 6 diapers today, I'm the PG. Hey, but I built the change table, so I'm the PG.

                  Comment


                  • #10
                    Regardless of who PG was during marriage it should not make a difference at divorce. Most agree you don't divorce the children only the other parent, if you follow this logic then whoever spent more time with child becomes unimportant or so it should. Of course it is not viewed this way...yet..

                    Comment


                    • #11
                      Courts generally prefer to see a continuation of what the kids have normally been exposed to in the way of care as a starting point.

                      Comment


                      • #12
                        Sasha,

                        I am a child centered individual. I admit up until last month I did pay an offset cs amount, however due to no fault of her own, my son's mother recently became unemployed. In my eyes, it is very important that she is able to provide a similar equivalent home for our child. I am paying the full cs now, no questions asked. I also know that if I was in the same predicament, my son's mother would do the same. I do care about my child very much, and if his mother doesn't do well, then it is going to effect him.


                        Motives for a shared custodial regime

                        Both parents are able to retain a strong positive parenting role in their children's lives, with the children actually spending substantial amounts of time living with each parent. It keeps children on the same footing as with intact families. Moreover, it allows the child through their respective parent to maintain a strong positive relationship with the particular parent's extended family.

                        Many children decline to 'choose' which parent to live with after family breakdown, and express dissatisfaction with the artificiality of traditional contact arrangements which often relegate one parent to the role of a distant and infrequent visitor.

                        Shared parenting offers the children the opportunity to build up and maintain meaningful relationships with both their parents.

                        It ensures continuation of family life for the child, with the advantage of nurture and meaningful and lasting relationships with both parents rather than just one.

                        It reassures children that they have two parents, and although they live in separate places, the children definitely have a home with each of them.

                        It ensures that one parent is not unfairly burdened with the responsibility of discipline while the other becomes merely the fun or contact parent.

                        It dispels the notion that only one parent is "caring" and that the other is "errant" or "absent".

                        It places both parents on an equal footing with schools, doctors and the world at large - who might otherwise only want to deal with the residential parent.

                        It confirms that no matter what, each parent wants to, and is able to, provide a home for their child.

                        It reassures the child that in the event of one parent dying they still has a home and another parent to go to.

                        It reassures the child that they have two parents, and although they live in separate places, they definitely have a home with both of them.

                        It affirms the parents in their belief that they both have an ongoing role in their child's life. (Physiological advantage)

                        It dispels the "win" lose "model" language that often that is associated with "sole custody" and "access."

                        I don't buy the stance, "as a motive to obtaining a reduction in child support." The same could be said to a parent that wants sole custody, they only want custody to receive full child support. If a child is spending equal amounts of time with both parent's, both parent's are going to incur significant costs.

                        LV

                        Comment


                        • #13
                          Why sole custody?

                          What are the advantages of a sole custody regime?

                          LV

                          Comment


                          • #14
                            This so true, at the same time creates a serious disadvantage to most children who should have the father remain in thier life in a proper manner. I don't think anyone could disagree that every second week-end with your child allows one to be a parent, I call that a frequent visitor.

                            So it's easy to see why the term is disliked by some, it's a matter of interpretation.

                            Comment


                            • #15
                              In Mol v. Mol, 40 O.T.C. 1, [1997] O.J. No. 4060,

                              an early pioneer case since kruger on parallel parenting 1997

                              before Kruzick J.

                              Paragraph 24

                              24 It is indeed unfortunate that the legislation, our case law and even our popular language is couched with traditional custody terms which imply possession and restraint. After separation and divorce, parents need to get on with their lives and the business of continuing to parent. As a result, within the submissions before me, I have made an effort in this decision to maintain their roles as parents to the extent possible given the facts of this case.

                              Paragraph 30

                              30 The court is also obliged to give effect to the principle that a child of a marriage should have as much contact with each parent as is consistent with the best interests of the child and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. Divorce Act, R.S.C. 1985, c.3 (2nd suppl) section 16(10). These children are fortunate to have a loving mother and a loving father. My order must, therefore, sustain the children's contact with each of them.

                              Paragraph 31

                              31 In a strong dissent in Kruger v. Kruger (1979), 11 R.F.L. (2d) 52 (Ont. C.A.), Wilson J.A. (as she then was) reviewed various forms of custody/access orders which might be characterized as joint custody orders and said at p. 72:

                              The appropriate option in any given case will be the one which best serves the needs of the child or children. Our courts have traditionally awarded sole custody to one parent and access to the other ... however, custody may be awarded to one parent with care and control in the other and access to the custodial parent: see Huber v. Huber (1975), 18 R.F.L. 378 (Sask. Q.B.). This form is sometimes used where custody to the father seems to best serve the long-term interests of the child but its shorter term interests requires that it be with its mother because of its age. Another option is an award of joint custody to the parents with care and control in one of them and access in the other: see Parker v. Parker (1975), 20 R.F.L. 232 (Man. C.A.); Field v. Field (1978), 6 R.F.L. 278 (Ont. H.C.).

                              This type of order preserves the participation of both parents in the important decisions affecting the child. Another type of order is the order for divided custody where one parent has custody for some period of the year with access to the other during that period and the positions of the parents with respect to custody/access reversed for the balance of the years: see Buchko v. Buchko (1973), 11 R.F.L. 252 (Sask. Q.B.). This type of order is sometimes used where the parents are residing in different jurisdictions.

                              These developments and the approach of the courts to custody matters all reflect a new awareness that in the mind of a child, authority and love are inter-related and that the transformation of the mother or father into a 'visitor' is a traumatic experience for the child frequently attended by feelings of rejection and guilt. In many cases it is wholly unnecessary ... It is in this social media that more imaginative, and if I may say so, more humane custody orders find their place. And what if occasional resort has to be made to the courts when the parents cannot agree on the major matter affecting the child? It seems to me to be a modest price to pay in order to preserve a child's confidence and the love of his parents and with it, his own sense of security and self-esteem.

                              In my view, it is the responsibility of the court on a custody matter to assess, preferably with professional assistance, the ability of the parents to co-operate in the upbringing of their children and in the light of that assessment, to choose from a range of options open to it, the one which will best serve the children's short and long-term interests. This is of paramount importance in a case where the trial judge finds that both parents exhibit sterling qualities and that the relationship between the parents and children discloses a high degree of love and affection on both sides.

                              Paragraph 32

                              32 The view of the Ontario Court of Appeal in the Kruger decision against extensive involvement of both parents has been accepted in some cases. However, there is significant support in the case law for the granting of joint custodial orders. When it comes to custody, each case must be assessed on its own unique facts and circumstances. In my assessment of these parents, if the children's best interests are to be truly served. I must make an order of joint custody.

                              Paragraph 33

                              33 In this case, I am satisfied that a joint custodial arrangement is workable. On my review of the facts before me, I find support for this approach in my review of the following cases where joint custody was ordered:

                              Silver v. Silver (1979), 35 N.S.R. (2d) 88 (N.S. T.D.); Groom v. Groom (1979), 10 R.F.L. (2d) 257 (P.E.I. S.C.); Berard v. Berard (1979), 10 R.F.L. (2d) 371 (B.C. S.C.); McCabe v. McCabe (1979), 11 R.F.L. (2d) 260 (P.E.I. S.C.); Gee v. Gee (1979), 13 R.F.L. (2d) 31 (Ont. H.C.); Charlton v. Charlton (1980), 15 R.F.L. (2d) 220 (B.C. S.C.); Parsons v. Parsons (1985), 55 Nfld. & P.E.I.R. 226 (Nfld. T.D.); Kamimura v. Squibb (1988), 13 R.F.L. (3d) 31 (B.C. S.C.): Nurmi v. Nurmi (1988), 16 R.F.L. (3d) 201 (Ont. U.F.C.); Heyman v. Heyman (1990), 24 R.F.L. (3d) 402 (B.C. S.C.); Hines v. Hines (1992), 40 R.F.L. (3d) 274 (N.S. T.D.); Miller v. Miller (1974), 17 R.F.L. 92 (Man. C.A.); Parker v. Parker (1975), 20 R.F.L. 232 (Man. C.A.); Fontaine v. Fontaine (1980), 18 R.F.L. (2d) 235 (Man. C.A.); Sichmann v. Sichmann (1988), 15 R.F.L. (3d) 307 (Alta. Q.B.).

                              Paragraph 34

                              34 In the case before me, Susan expressed unwillingness to consider a joint custody arrangement. Notwithstanding what I can only describe as her hostility toward Ian. I must consider the best interests of these children. On the facts before me. I find that Susan's attitude and resistance is not justified. For the sake of her children and her relationship with them, she must be less rigid.

                              Paragraph 35

                              35 I am supported in my approach by the decision in Abbott v. Taylor (1986), 2 R.F.L. (3d) 163 (Man. C.A.) where Twaddle J.A. makes the following comments (at p. 171):

                              I would add, also as a matter of common sense, that the mere expression by one or both parents of an unwillingness to share custody should not preclude an order of joint custody if the court considers such unwillingness to be the manifestation of temporary personal hostility engendered by the trauma of a recent separation.

                              LV

                              Comment

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