What is Equal Shared Parenting? / What is a Rebuttable Presumption of Equal Shared Parenting all about?

Two articles from the FACT site FYI.

http://fact.on.ca/

Fathers Are Capable Too (Canada)

http://www.fact.on.ca/facthome/esp2.htm

What is Equal Shared Parenting?
By a Director of Fathers Are Capable Too: Parenting Association

We get all kinds at a FACT support meeting (Fathers Are Capable Too:
Parenting Association). At a recent meeting, aside from our regular
custodial dad, non-custodial mom, and varying forms of unequal shared
parenting arrangements, we had a non-custodial father who had just got his
kids when Children's Aid took them from their abusive mom, a dad who was
still going to supervised access after 8 years, another dad who was in
financially meltdown, partially due to court ordered payments to cover
mom's drug addiction, a couple who were attempting to extract his children
from maternal neglect and associated PAS, and a "normal" case where the guy
was trying to wrap his mind around the fact that his ex had de facto
custody because he left to go to work.

I mention this to show how that despite the incredible variety of cases,
they are all fundamentally solved with the same medicine: equal parenting.
Equal parenting provides something that no other parenting arrangement
provides: quality assurance. If one parent is failing to provide adequately
in one part of the overall parenting domain, the other parent can easily,
and legally, step in and help. The child can get help in math at one home,
help in French at the other, and help in personal relationships at either.
And if one parent is stressed out to the extent of harming or neglecting
the child, the other parent can be the child's champion ... and yet not
sever that stressed parent completely because that leads to ... the next
paragraph.

Relationship breakdowns are acrimonious affairs. But far more acrimonious
are relationships that are forcibly broken down by someone outside the
relationship. It's a great way to generate outright hate. There is one
activist in Ontario who specialises in "shotgun divorce" cases (where the
State says "if you don't divorce, you'll never see your children again"),
but I'm talking about a "normal" divorce, where the child's relationship
with one of their parents is often permanently severed, with neither the
child nor the affected parent desiring it. This is a fundamental denial of
the Charter right of association; not merely denying the 'form' of the
relationship (as the gay-marriage advocates say), but a denial of the
relationship itself. In no other case, does the State jump in with police
powers and forcibly prevent people from associating with each other when
they wish to associate.

So when parents sense that they may lose their child forever (because the
child, being so young, will not have the capability of recovering the
relationship on its own), they react to this impending doom. Sometimes they
flip out and do outrageous, and illegal things ... like the mother who
kidnapped her triplets, or the murder-suicides (like the mother who shot
her ex-husband in Oakville last year). But these are caused by the lack of
personal security: if this precious relationship was secure then the parent
could consent to temporary measures to help both parents over the impasse.
Currently, there is no such thing as a temporary measure (who believes the
"interim" part of "interim custody").

So, here is the key element of Equal Parenting: have the system work to
reduce tension, rather than the current "winner take all" system that
encourages enflaming the situation and family and child dysfunction.

Children inherently have no real rights because they cannot enforce any
"rights" on their own. A child requires a champion to work the system. The
government cannot provide this champion because the government does not
know the child, and neither does the bureaucrat assigned the case. Only the
parents do, and only if they live with the child a substantial amount of
the time. A child has no control over the money, even if it is in the
child's name. Thus, a child has only two assets: Mom and Dad. Everything
else is an illusion.

Divorce has a huge, but unmeasured effect on the economy. All Western
developed countries have a similar divorce process, so we don't have any
effective data the measure divorce's impact. However, note that the surest
way to gain custody of your child is to quit work. The usual way of losing
custody is to go to work. By stepping out the door, you've stepped out of
the child's life, possibly forever. This is not a productive way to run an
economy. Using the court process to recover a relationship with your child
is often so exhausting, that it is a frequent occurrence that men lose
their jobs (due to poor performance), and then, unable to pay support, they
start a downward spiral that leaves them as largely unproductive members of
society.

Taxpayers support divorce, and taxpayers support the added cost to society
of single parent homes. Child support cannot possibly be high enough to pay
these added costs without destroying the life of the payor (and his
capacity to earn). Using the guideline amounts for child and spousal
support, a payor can see 70% of this income deducted at source, more if
there are add-ons or if the income is imputed at higher level. The Laffer
curve (tax-policy concept) indicates that this produces less revenue
overall. Downloading welfare onto an individual is poor policy. An average
earner payor is prevented from forming stable new relationships ("moving
on") owing to the huge financial stress they are under. An average
recipient is demotivated from seeking employment since for each dollar
earned, taxpayer support is reduced by 70 to 80 cents. The essence is: two
households cost more than one, so, for average earning households, the
taxpayer must pay to make up some of the difference.

Equal parenting tends to reduce the overall divorce rate; if you know you
will always have to deal with the other parent, there is a stronger desire
to have the marriage work. This is born out in several American states that
have a presumption of (legal) joint custody.

Equal shared parenting is now the law in Iowa (since last July).

This issue cannot be fought directly in the courts, because the primary
losers in the change from the adversarial system to a system based on
equality are the lawyers and judges themselves. Divorces represent a huge
amount of income to the legal profession, money that could have been used
to raise the children. FACT attempted to bring forward a constitutional
challenge, but the court would not hear it. Other groups can have their
challenges heard with far fewer members. The custody/access portion is not
really possible to bring forward in an individual case owing to the nature
of the cases; the initial court process is slow, the appeals process is
slow, the children are grown up and gone before the Supreme Court would
ever hear it.

The groups that will most adversely affected by ESP are lawyers, judges,
assessors, and other elements of the legal system. Most ESP activists can
relate to this: divorce lawyers will not be able to charge such massive
fees when the consequences for failure, and the probability of failure are
substantially reduced (failure in this case means losing a meaningful role
in your child's life). Although this is the obvious change, the system will
still play a role in dealing with mediating lower level things, and, more
importantly, teaching the parents to be reasonably co-operative (since
otherwise they will be racking up the mediator charges). However, there is
a secondary effect that impacts the legal system:

Children of divorce currently learn just how easy it is to ignore the
court. They live with the custodial parent, who is court ordered to
facilitate access. Yet that parental role model flouts the court order. And
the child certainly sees it. The child certainly senses the injustice of
one parent lording it over the other, preventing access on a whim. After
all, the child is directly affected by access denial; directly abused by
it. The child learns that courts, police, and other elements of the justice
system are powerless against the custodial parent. With that lesson well
learned, the child grows up, becomes independent, ignores authority and
flouts the law. Is it any wonder that children from single parent homes are
far more likely to be involved in crime?

One should note that neighbourhood crime statistics correlate more with
single parent homes than income levels. Poverty no longer generates as much
crime as single parenthood does. Criminal lawyers will lose business if
crime is reduced.

Equal shared parenting lays the foundation for effective access
enforcement, since it changes the norms of society. If everyone expects
equality between the parents, then the abnormal denial of one parent will
be readily seen as child abuse, and actions will be taken by neighbours,
the schools, and other members of the community to correct so obvious an abuse.

Some people suggest that equality between parents is somehow anti-woman. We
should note that back in the 1960s, when the American feminist organisation
NOW was founded, one of their principles stated that equality in employment
could never be achieved as long as their wasn't equality in child-care
within marriage (they dropped this line more than 20 years ago). Dr. Kruk's
study of the "Disengaged" non-custodial fathers suggests that parenting
roles have evolved since the 1960s, with fathers taking on a more hands-on
role. With mothers in the workforce and fathers changing diapers, both
parents are in both traditional roles, and yet the sole-custody presumption
in divorce reflects that old model of sex-specific roles. Kruk shows that
being shunted out into the NCP role immensely hurts fathers who were
actively involved in parenting during the marriage. They go into "chronic
grief" (the experience, I'm sure many have had it, of feeling that your
child has just died, every time you hand your child over to your ex). This
grief can destroy one's soul, and hence one's productivity.

ESP recognises that parental roles have changed. Oddly, that makes us more
feminist than the women's groups (who are not seeking equality, but only
things that are good for women ... forget children and don't even mention
men). With shared parenting within the marriage, we must have equal
parenting after a marriage; otherwise one parent will drop into "chronic
grief" and become a burden to society.

Lastly, this is a human rights issue. There is only one group that is
specifically targeted by special laws to have their assets seized, their
bank accounts frozen, and be placed in jail without ever committing a
crime.* Support payors with chronic grief. ESP works to remove the grief.

* Actually, they are victims of a crime, child abduction. However, the
court legalises the crime when it "awards" sole-custody.

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Here is a summary that was presented to the federal Department of Justice:

http://www.fact.on.ca/facthome/esp.htm

What is a Rebuttable Presumption of Equal Shared Parenting all about?

Fathers Are Capable Too: Parenting Association

Every civil law has a default position. Don't pay if not through the court
system, innocent until proven guilty, if the car is full of drugs it is
seized, and so on. The Divorce Act does not have one, and it needs one
since the family courts in Canada have implemented one that is not "in the
best interests of the children".

Equal shared parenting assumes that parents should share in the
responsibilities and parenting time for their children on an equal basis.
This is, of course, the assumption inherent when a married couple have a
child, irrespective of any deemed conflict between the. Even in Quebec's
same-sex civil union law this basic tenant is recognised. It deems an
equivalent set of rights and responsibilities before a separation as after.
Of course, separation changes the nature of the contract of divorce. As
with the pre-divorce scenario, couple may agree to share these
responsibilities differently - who goes to Saturday soccer, who chauffeurs
children to a birthday party, who cooks on which night, who is responsible
for heating which house, which days parents work and so on. At separation
with two different households the nature of the splitting of tasks there
will be change, but the ability to be flexible must still be available to
accommodate both parents and children. More importantly, it is the first
6-18 months after the separation that has the largest impact on the
psychological well-being of the children of divorce - this is the time to
implement a balanced and low conflict environment.

A presumption of equal shared parenting at divorce makes a level playing
field between the parents with respect to parenting time and responsibility
at the moment of separation. From that point on, parents and children have
the ability to craft an agreement with which all agree. The courts and
lawyers should not, and need not, be involved. Once there is an agreement
between the parents covering the issues of parenting time, location and
financial issues (often called a "parenting plan") the parents can move
away from the default 50-50 sharing. If there is no agreement, the 50-50
sharing will be left in place. Parents gain from reasonable solutions. If
pettiness and aggression is instituted by one parent then the best such
fighting will obtain is a 50-50 split, and it may well limit time with the
fighting parent if it is damaging to the child. By eliminating the power
imbalance, the root cause of parental fights and the concept of "winning"
evaporate.

Of course, the presumption must be rebuttable. If father is in jail, if
mother is in an institution, if either has a history of killing children
when put under stress, or of neglecting or abusing their children, it is
time to look at things differently. Real and proven reasons should change
the situation. Speculation should not.

The accommodation should be for the parents and the children. It is not for
the lawyers, judges, psychologists, counsellors, and other bureaucrats who
may be trying to move in, take money and/or control the lives of parents
and children where there is no reason to do so.

Courts should not have the ability to impose special arrangements under
normal circumstances. Only in circumstances where it is proven not to be in
the best interests of the child (not the best interests of either parent)
may the courts intervene to move away from the equal parenting arrangement.
The courts would intervene at the time of separation if there existed a
proven reason in which they has already intervened. If there was not point
in intervention before the separation that is no point in intervening at
the separation.

Issues may develop afterwards. In cases of parental psychological
dysfunction, the abusive alienation of children (inducing Parental
Alienation Syndrome in the children), other child abuse or neglect, a
parent refusing to comply with agreement, and the kidnapping children (i.e.
refusal of the other parent's parenting time) are the types of problems
where the courts should be involved. However, this will hopefully be
successful.

A lowering of the conflict of divorce, a clean definition of a continuance
of the pre-separation rights and benefits, and a system where attempts to
fuel a battle are suppressed will benefit the children of divorce. The
savings in legal costs alone will provide increased standards of living to
many of these children.

Society will gain from both healthier children and a substantial ability to
reduce the expensive and unnecessary institutions that currently fuel
divorce conflicts. A policy should be seeking to reduce the number of
family courts and family judges, the bureaucracy in place to foster
conflict, and the massive attempts to patch up the collateral damage caused
already.

A rebuttable presumption of equal shared parenting creates the environment
to produce the stated goals of the federal and provincial legislation
governing divorce and separation.