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Political Issues This forum is for discussing the political aspects of divorce: reform to divorce laws, men's rights, women's rights, injustices in the divorce system, etc.

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  #1  
Old 04-25-2009, 05:43 PM
SilverLining SilverLining is offline
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Post Assuming is never a good option.

Reasons for opposing an assumtion for shared parenting/Joint parenting

Please see below:
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Old 04-25-2009, 06:35 PM
SilverLining SilverLining is offline
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Post Assuming is never a good option.

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.
  #3  
Old 04-26-2009, 08:44 AM
logicalvelocity logicalvelocity is offline
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Interesting.

I agree!

Assuming is never good. Having said that could you support your opinionated article with statistics, case law, etc. It might make it more credible. As it stands now its just propoganda towards a cause.


lv
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Old 04-26-2009, 09:38 AM
SilverLining SilverLining is offline
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Thank you for the suggestion, LV. While I would hardly call it propaganda since my ideas for resolution come from research and experience and not just hot air, at the first given opportunity I will provide stats and case law examples to help support my conclusions on the subject.
Cheers!
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Old 04-26-2009, 09:41 AM
SilverLining SilverLining is offline
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In fact, that is a great suggestion to make it a stronger argument and make the article more marketable to more communication resources. Thanks!
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Old 04-26-2009, 10:30 AM
logicalvelocity logicalvelocity is offline
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Quote:
Originally Posted by SilverLining View Post
In fact, that is a great suggestion to make it a stronger argument and make the article more marketable to more communication resources. Thanks!
Heres a great start for background research, an Appeal Case which refers to current law (Federal and provincial) with respect to the issue of Custody.


Lewis v. Lewis, 1988 CarswellOnt 318, 18 R.F.L. (3d) 97, [1988] O.J. No. 2187 (Ont. Dist. Ct., Dec 08, 1988)

Salhany D.C.J. held at paragraph 6 ...



Quote:
6 Historically, custody disputes have been a "winner-take-all" process. The winner, having gained custody of the child, then begins to refer to the child as his or her child and starts to dictate when the non-custodial parent can have access. The access parent quickly finds that he or she is on the outside looking in, having to make frequent applications to the court for greater access or for information from the child's school about his academic progress or information from the child's doctor about his health, matters that he or she took for granted when the parties were residing together. Until recently, joint custody has been the exception rather than the norm even though both parents have been found to be equally competent to have custody. Judicial thinking has proceeded upon the assumption that joint custody cannot work unless the parties are prepared to cooperate fully in every aspect of child rearing.

7 Fortunately, that attitude has been overridden by legislative enactment. For example, s. 16(4) of the Divorce Act provides:

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Less specific is the Children's Law Reform Act, R.S.O. 1980, c. 68. Section 20(1) simply provides that:

(1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

Subsection (3) goes on to say that:

(3) When more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibility of a parent on behalf of them in respect of the child.

8 These provisions indicate that while both parents are equally entitled to custody of a child, once a court grants an order making one parent the custodial parent, that parent alone has the right to make such decisions respecting where that child will live, what education he will receive and what will be his religious training.

9 In my view, where a court finds that both parents are equally suitable to be custodial parent, an order for joint custody should follow. There should, as well, be spelled out in that order where the children shall reside and who shall have the right to make decisions respecting such matters as education and religion. Often, it may not be necessary to do so where the order provides that the children shall reside with one parent during the school week and the other parent on weekends. In such instance, the parent who has the children during the week will automatically decide where they shall attend school. The parent who has the children on the weekends will have the opportunity to arrange for that child's religious education. If weekends are divided, then the parent who has the children that weekend will be entitled to take the children to a religious service of their choice.

10 Apart from the right to exercise control over the care, health and education of the children, a joint custody order has the psychological advantage of permitting a parent to feel that they have not been left out of their children's life and have the legal right to make important decisions affecting their children's future.

11 In this case, it was implicit in the reasons of the learned trial judge that both parents were suitable custodial parents. The learned trial judge felt that he had to make a decision between the two and chose the father for the reasons recited earlier. In my view, the trial judge ought to have made an order for joint custody. For these reasons, the appeal will be allowed and in its place there will be an order that both parties have joint custody. As I indicated earlier, the parties have worked out an agreement as to where the children will reside and that agreement will be incorporated in the order.

Appeal allowed; joint custody awarded.

lv

Last edited by logicalvelocity; 04-26-2009 at 10:41 AM.
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