THE FATHERS’ RIGHTS MOVEMENT MONTHLY Issue 11
June 2019
Shared Parenting is in “THE BEST INTEREST OF OUR CHILDREN”
Countering Arguments Against Shared Parenting in Family Law Have we reached a tipping point in the child custody debate? By Edward Kruk Ph.D.
Despite strong public support and mounting empirical evidence in its favor as an ideal living arrangement for the majority of children of divorce, shared parenting as presumption in family law has historically been met with skepticism among some legal and mental health professionals. In a recent article in the Journal of Divorce and Remarriage, I describe how the past 40 years have produced three distinct “waves” of arguments against shared parenting, and how these have stalled meaningful legislative reform toward the establishment of shared parenting as a legal presumption, placing the burden of proof on shared parenting proponents to defend their position and demonstrate its efficacy, in a way that supporters of more traditional sole custody arrangements have not had to face. The first wave of arguments was advanced in a manner that considered the idea of shared parenting of children by parents in conflict after divorce as an outlandish proposition. Three distinct arguments were made to discredit the concept: First, it was asserted that children have one primary attachment figure to whom they become bonded, almost always the mother, and that any period of separation from the primary attachment figure will damage children’s development and compromise their well-being. At the same time this argument was advanced, however, reformulations of attachment theory emphasized the fact that children typically formed primary attachments to both parents, that these attachments were equally important for children, and that children tenaciously continue these attachments in changing circumstances, including after divorce. A second line of argument was then put forward, stating that child development would be compromised when children move back and forth between two homes, “bounced around like a yo-yo,” with constant movement, Page | 1
two sets of home rules and different parenting styles. The research on children living in two homes found, however, that children themselves generally did not report such problems, and that sustaining attachments with both of their parents protected them from the adverse child development outcomes often accompanying divorce. In fact, lengthy separations from either primary attachment figure were found to be detrimental to child development. Finally, a third argument was made that it is harmful to child development to disrupt the caregiving status quo, and that mothers should thus retain their role as the primary day-to-day caregivers of children. Research suggested otherwise, however: shared care of children was becoming the norm in twoparent families and disrupting shared parenting would in fact be more likely to lead to instability in children’s lives. The second wave of arguments against shared parenting were presented as more concentrated and in-depth rebuttals of the concept, especially in situations where parents disagreed or were in conflict over child care arrangements after divorce. First, it was argued that shared parenting after divorce exacerbates parental conflict, and that children would be drawn into the conflict if shared care arrangements were imposed on families. Shared parenting, therefore, is only suitable for parents with little or no conflict and who get along well as co-parents. Again, research findings challenged this viewpoint: in actuality, an adversarial “winner-take-all” approach to child custody exacerbates parental conflict, leading to adverse consequences for children, whereas conflict is reduced in shared parenting arrangements where neither parent feels marginalized from his or her children’s lives. Further, research demonstrated that children do better in shared care arrangements even if there is conflict between the parents, and that sustaining both relationships is a protective factor for children in high parental conflict situations. Not all conflict is bad for children. Ongoing and unresolved conflict, however, is harmful to children; in such situations, rather than depriving children of a relationship with one parent, interventions to reduce conflict and support child development, such as assisting parallel parenting, therapeutic family mediation, and parenting education programs, were found to be most protective of child well-being. In response, a second critique of shared parenting was then advanced within the “second wave”: in high-conflict families, shared parenting exposes victimized parents and children to family violence and child abuse, and a legal presumption of shared parenting will allow abusive parents to continue their reign of terror in families. This argument, however, misrepresented the position of shared parenting proponents, who made clear that a legal presumption of shared parenting Page | 2
should always be rebuttable in cases of violence and abuse, as in such cases the safety of children and victimized parents is the primary consideration. The third wave of arguments against shared parenting acknowledged that shared parenting may be beneficial for most children and families of divorce, including those in high conflict, but cautioned against the use of presumptions in family law, arguing that the best interests of children are different in each individual case, and that judges should retain their decision-making authority when it comes to post-divorce living arrangements for children. In response to this viewpoint, it has been pointed out that research on post-divorce outcomes for children and families has now established which living arrangements are most likely to support healthy child development. Without a legal presumption, judges make decisions based on idiosyncratic biases, leading to inconsistency and unpredictability in their judgments. And with two adequate parents, the court really has no basis in either law or psychology for distinguishing one parent as “primary” over the other. It may be asked, then, after 40 years of debate, whether we have now reached a tipping point, when researchers can conclude with confidence that the best interests of children are commensurate with a legal presumption of shared parenting responsibility after divorce. Summarizing the state of current research in two recent special issues on shared parenting in the Journal of Divorce and Remarriage and the Journal of Child Custody, leading divorce scholar Sanford Braver asserts, “To my mind, we’re over the hump. We’ve reached the watershed. On the basis of this evidence, social scientists can now cautiously recommend presumptive shared parenting to policymakers...shared parenting has enough evidence [that] the burden of proof should now fall to those who oppose it rather than those who promote it.”
10 Surprising Findings on Shared Parenting After Divorce or Separation by Linda Nielsen Page | 3
What is the most beneficial parenting plan for children after their parents separate or divorce? Are children better off living primarily or exclusively with one parent in sole physical custody (SPC) and spending varying amounts of time with their other parent? Or are their outcomes better when they live with each parent at least 35% of the time in a joint physical custody/shared parenting (JPC) family? Furthermore, is JPC beneficial when parents have high, ongoing conflict? In fact, isn’t shared parenting only chosen by, and suitable for, a very select group of parents—those with higher incomes, lower conflict, and more cooperative relationships who mutually and voluntarily agree to share from the outset? To answer these questions, I reviewed 54 studies that compared children’s outcomes in shared and sole physical custody families independent of family income and parental conflict. In another recent study, I examined all the studies that compared levels of conflict and quality of co-parenting relationships between the two groups of parents. Ten findings emerged from my research, many of which refute commonly held beliefs that can lead to custody decisions that are often not in children’s best interests. 1. In the 54 studies—absent situations in which children needed protection from an abusive or negligent parent even before their parents separated—children in shared-parenting families had better outcomes than children in sole physical custody families. The measures of well-being included: academic achievement, emotional health (anxiety, depression, self-esteem, life satisfaction), behavioral problems (delinquency, school misbehavior, bullying, drugs, alcohol, smoking), physical health and stress-related illnesses, and relationships with parents, stepparents, and grandparents. 2. Infants and toddlers in JPC families have no worse outcomes than those in SPC families. Sharing overnight parenting time does not weaken young children’s bonds with either parent. 3. When the level of parental conflict was factored in, JPC children still had better outcomes across multiple measures of well-being. High conflict did not override the benefits linked to shared parenting, so JPC children’s better outcomes cannot be attributed to lower parental conflict. 4. Even when family income was factored in, JPC children still had better outcomes. Moreover, JPC parents were not significantly richer than SPC parents. 5. JPC parents generally did not have better coparenting relationships or significantly less conflict than SPC parents. Page | 4
The benefits linked to JPC cannot be attributed to better co-parenting or to lower conflict. 6. Most JPC parents do not mutually or voluntarily agree to the plan at the outset. In the majority of cases, one parent initially opposed the plan and compromised as a result of legal negotiations, mediation, or court orders. Yet in these studies, JPC children still had better outcomes than SPC children. 7. When children are exposed to high, ongoing conflict between their parents, including physical conflict, they do not have any worse outcomes in JPC than in SPC families. Being involved in high, ongoing conflict is no more damaging to children in JPC than in SPC families. 8. Maintaining strong relationships with both parents by living in JPC families appears to offset the damage of high parental conflict and poor co-parenting. Although JPC does not eliminate the negative impact of frequently being caught in the middle of high, ongoing conflict between divorced parents, it does appear to reduce children’s stress, anxiety, and depression. 9. JPC parents are more likely to have detached, distant, and “parallel” parenting relationships than to have “co-parenting” relationships where they work closely together, communicate often, interact regularly, coordinate household rules and routines, or try to parent with the same parenting style. 10. No study has shown that children whose parents are in high legal conflict or who take their custody dispute to court have worse outcomes than children whose parents have less legal conflict and no custody hearing. These findings refute a number of popular myths about shared parenting. One among many examples is a 2013 study from the University of Virginia that was reported in dozens of media outlets around the world under frightening headlines such as: “Spending overnights away from mom weakens infants’ bonds.” In the official press release, the researchers stated that their study should guide judges’ decisions about custody for children under the age of four. In fact, however, the study is not in any way applicable to the general population. The participants were impoverished, poorly-educated, non-white parents who had never been married or lived together, had high rates of incarceration, drug abuse, and violence, and had children with multiple partners. Moreover, there were no clear relationships between overnighting and children’s attachments to their mothers. My review of 54 studies on shared parenting finds that, independent of parental conflict and family income, children in shared physical custody families—with the Page | 5
exception of situations where children need protection from an abusive or negligent parent—have better outcomes across a variety of measures of wellbeing than do children in sole physical custody. Knowledge and understanding of these findings allow us to dismantle some of the myths surrounding shared parenting so we can better serve the interests of the millions of children whose parents are no longer living together.
Shared parenting research (is it really best for kids?) By Emma Johnson
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First, let's establish this right away: Shared parenting isn't right for families where one parent struggles with addiction, there is a history of violence or abuse, or severe mental illness. As of April, 2018 Kentucky became the first state in the country with a “legal presumption� for joint custody in divorce proceedings. That means that when you split in Kentucky, time with the kids is equally split in half — and the onus is on one parent to argue the other should have less time. Other states including Arizona, Missouri and South Dakota also have very progressive and strong shared-custody laws, and 25 states are debating legislation that would do the same. For the vast majority of separated and divorced families, shared parenting is what is best for children.
There are more than 60 peer-reviewed, published articles that prove this.
Shared parenting is best for parents and kids It turns out that shared parenting is best for parents, both mothers and fathers. After all, when you have a real break from your kids, a true support system in parenting, where the logistical, emotional, financial circus of childrearing is shared, the adults are free to build careers and businesses, devote important time to health, relationships and self-care. This is not my opinion. It is fact, as outlined in the studies summarized below. This research is heeded by family courts and legislatures around the country. In 2017, bills that would mandate that custody and visitation arrangements start at 50-50 were introduced in state 25 legislatures. In 2018, that number is 20 states. These are bipartisan efforts, and based on the research, and also commonsense morals: It is unethical and sexist to presume that one parent is a better parent than the other, and both parents are legally entitled to time with his or her children. [More on how to divorce in a way that promotes gender equality.] Morality aside: Research finds time and again is best for children when they have equal time with both parents.
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What is shared parenting? Shared parenting means that in the event of separation or divorce, the children spend approximately equal time with both parents. Often called “joint physical custody,” or “50-50 custody,” courts generally consider at least 35 percent of the time spent with one or the other to be equitably shared time, for the sake of being reasonable and managing the logistics of everyday life. Shared custody has been common for decades, and this means that both parents
have joint legal decision making powers when it comes to medical care, education, religion and where the children will live.
What is new is the deviation from the most common, traditional divorced-family schedule: Children reside with the mother, every-other-weekend and one weeknight with the father, and the father pays child support. As research has found this time split to be detrimental to the children's well being, there has been a culture and legal shift towards shared parenting. In Kentucky and other states leading the way on this front, the presumption is that both parents are fit, and therefore granted equal access to their children. The onus is on one or the other parent to show cause to minimize time with the children, such as in cases of addiction, severe mental health or abuse. Similar laws are commonplace throughout the world, but not the United States. Terry Brennan, co-founder of Leading Women for Shared Parenting, which is leading this cause, said that it is not a tough campaign to convince legislators to support shared parenting bills — but that state bar associations consistently lead opposition to these laws. “Research finds that this is a bipartisan issue, with both Democrats and Republicans supporting it equally, as well as both men and women.” – Terry Brennan
Ginger Gentile, activist and filmmaker of Erasing Family, which explores the epidemic issue of parental alienation, which is closely related to a Page | 8
lack of shared parenting, said that in her research of the leading experts on divorced families, she struggled to find any voices that opposed shared parenting. Learn more: Parental alienation resource center
5 research-based reasons shared parenting is best for kids Wake Forrest professor and shared parenting expert Linda Nielsen crunched the data of 54 studies and found that absent situations in which children needed protection from an abusive or negligent parent even before their parents separated—children in shared-parenting families had better outcomes than children in sole physical custody families. This includes high-conflict divorces in which the fighting continues long-term. The measures of well-being included: 1. Academic achievement 2. Emotional health (anxiety, depression, self-esteem, life satisfaction) 3. Behavioral problems (delinquency, school misbehavior, bullying, drugs, alcohol, smoking) 4. Physical health and stress-related illnesses 5. Relationships with parents, stepparents, and grandparents.
Shared parenting in high-conflict relationships From an article in Psychology, Public Policy and Law: “The best research currently available suggests that the quality of the parentchild relationship is more closely linked than parental conflict or the quality of the co-parenting relationship to children’s outcomes, with the exception of the most extreme forms of conflict to which some children are exposed.”
Conflict, co-parenting, and the quality of the children’s relationships with each parent are all connected to children’s well-being. This is not an “either-or” issue that ignores the role that parental conflict or coparenting play in children’s lives. Still, the data strongly supports the idea that the quality of the parent-child relationship is the best predictor of future outcomes for the children.
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In other words, the role of conflict has too often been exaggerated and should not be the determining factor in child custody decisions or in regard to JPC arrangements except in those situations where the children need protection from an abusive or negligent parent.
Children need time with both parents There is no reason to postpone overnight visits of infants or toddlers.
In fact, 110 international experts agree with the conclusion reached by psychologist Richard Warshak in his recent research paper: “There is no scientific evidence that justifies limiting or postponing overnighting until children of separated parents reach the age of four.”
Read this whitepaper by bestselling author (Divorce Poison) and professor Warshak: Stemming the Tide of Misinformation: International Consensus on Shared Parenting and Overnighting.
Traditional visitation schedules can weaken father-child relationships for life Study by Wake Forrest professor Linda Nielsen, published in the American Journal of family Law: “Most children want to spend more time living with their fathers. Most do not like the every other weekend”
Indeed, this is one of the most consistent, most robust findings in the research on children of divorce. Most children say they wanted more time with their fathers and that the most long lasting, most negative impact of their parents’ divorce was the weakened or lost relationship with their fathers. The majority who had lived with their mothers said that shared parenting would have been in their best interests. Not surprisingly, when fathers try to rebuild their relationships during the children’s early adult years, the relationship is often too strained or too damaged to be reconstructed. As one of the most highly respected researchers on children of divorce, Joan Kelly, states,
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“[f]or four decades children have reported the loss of the father as the most negative aspect of divorce. Even when they continued to see each other, most relationships declined in closeness over time. This has been primarily a result of the traditional visiting patterns of every other weekend which has been slow to change even in the face of mounting research evidence and a reluctance to order overnights for your children.”
‘Primary Parent’ A Myth; Shared Parenting Best For Kids
by Robert Franklin, Esq.
I can’t add a lot to this excellent op-ed written by Dr. Les Veskrna who heads the Children’s Rights Council of Nebraska (Lincoln Journal Star, 1/12/13). Here’s a man whose chief avocation is the improvement of the lot of children and he’s excoriating family courts for doing the opposite. Unsurprisingly, he nails it. Veskrna uses two recent cases in Nebraska as his point of departure. In both, fathers were actively involved in their children’s lives and upbringing; in both they were capable and loving, and not charged with any form of wrongdoing. The mothers, by contrast, had extramarital affairs that precipitated both divorces. And in both, no one will be surprised to learn, the mothers received sole legal custody of the children. To add insult to injury, in one, the mother was allowed by the court to move 150 miles away from her ex-husband and of course take the kids. That meant not only that the children lost all but occasional contact with their father, but that they were uprooted from their friends, school, familiar homes, etc. as well. In the other, the father received the standard fourdays-a-month visitation. Why did mothers, both of whom had committed moral wrongs that destroyed their families, get custody? Veskrna correctly points out the reason as well as the fallacy behind it. The reason is that the courts called the mothers the “primary parent.” Indeed Nebraska, like many states, requires its judges to ascertain who has been the “primary parent” to the child, and gives heavy weight in custody decisions to the outcome of that inquiry. Page | 11
Psychology Shows Children Identify With, Need Both Parents But, as Veskrna so cogently points out, the concept of a “primary parent” is itself a myth. Now, as the judges and legislatures see it, that’s not the case; any parent who spends more time than the other in hands-on child care is the primary parent. So why does Veskrna say the notion of a primary parent is a myth? Because it’s not the “best interests” of judges and legislatures that we’re trying to promote in custody decisions, it’s the well-being of children. And reams of social science show that children don’t identify one parent or the other as primary and the other largely expendable. Children see both parents as important to them and suffer terribly at the loss of either. To them, neither parent is more important than the other. Indeed, psychologists have long known that, from the very first weeks of life, children are able to distinguish between Mom and Dad and respond differently to their different ways of parenting. Children in fact bond strongly with both parents almost before they do anything else. And later, children come to see parents for what they are – discharging different roles, but equally important to them. So, while one parent may change more diapers than the other, warm more bottles than the other and one parent may spend the day at work, come home and play with the child, neither parent is more important than the other to the child’s well-being. This is standard child psychology and it is routinely ignored by family courts. And that’s something that Veskrna inveighs against, as I have more times than I can count. State legislatures enact laws and family judges issue hundreds of thousands of orders a year that directly contradict the clear teachings of child psychology and the sociology of children’s welfare. Many people are troubled by these cases because it appears the guilty party was rewarded and the innocent parties wronged. The initial outcomes certainly seem unfair. However, this isn’t the worst part of these decisions. Not only are the initial outcomes unfair, these decisions put the children at risk for very negative long-term consequences. Children affected by divorce fare worse, on average, on nearly every measure of health and emotional well-being including a greater risk of academic problems, alcohol and drug use, poor social skills, depression and suicide, delinquency and incarceration, and poorer physical health and early mortality. The reason for all this has much to do with the fact that one of the two most important people in a child’s life is often relegated to the role of an infrequent visitor, as the above examples illustrate… These cases are based on the myth that one parent is the primary parent. Judges often Page | 12
decide cases this way even though there is no legal or mental health basis for it. More than three dozen studies over the past 20 years have found that when both parents are loving and competent, which is the case most of the time, a shared parenting arrangement – with joint decision making and near-equal parenting time – provide the best outcomes for their children. Thank you, Dr. Veskrna. Into the bargain, Canadian researcher Paul Millar’s analysis of nationwide Canadian data concludes not only that there is no empirical basis for maternal sole custody but in fact it may be worse for children than sole paternal custody. Not only that, but the text from which the concept of the “primary parent” came – the 1973 book, Goldstein, Solnit and Freud’s “Beyond the Best Interest of the Child” – is just flat wrong in the factors it enumerates for deciding sole custody. Millar concludes, Thus, the major tenet of Goldstein, Solnit and Freud’s thesis – one that has been adopted wholeheartedly by many jurists, including the Supreme Court of Canada – is not only unsupported by evidence, but, worse, appears to promote harmful outcomes for children through the legal support given the destruction of one of the important parental relationships for the child. For his part, Veskrna calls the notion that it promotes a child’s best interests to be separated almost exclusively from one parent “simply wrong.” He couldn’t be more right. And of course, the sole parent/visitor paradigm so favored by courts across this country and the world has another downside; it exacerbates conflict. How could it not? After all, when two adults are at each other’s throats anyway, and both know to a certainty that the most important “asset” of the marriage, the child, will be “awarded” to one of them and denied to the other, is it any wonder they pull out all the stops in their custody war? For that matter, is it any wonder that, once the custody order is made, they continue to fight? Mom got the prize and is determined to keep it; Dad got stiffed and wants revenge. Veskrna knows the many studies that show that shared parenting tends to lessen conflict and doesn’t hesitate to tell his audience about them. Finally, there’s Arizona that, as the Fathers and Families newsletter recently reported, changed its child custody statutes and, in Veskrna’s words, “ now directs courts to maximize the parenting time of both parents whenever possible.” There’s many a slip between that requirement and truly equal parenting post-divorce, but let’s thank Dr. Les Veskrna for his valuable work promoting what’s really in children’s best interests – a full relationship with both parents.
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Why Is Equal Parenting After Divorce Important?
BY CATHY MEYER
Question: Why Is Equal Parenting After Divorce Important? Answer: I am in favor of equal parenting rights with equal physical and legal custody. After raising two sons who have no contact with their father, I’ve seen firsthand the damage an absent parent can cause.
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My ex was given every opportunity to equally parent his children. He wasn’t interested but there are many fathers who fight against a system that favors mothers and one thing a father should never have to do is fight for the right to equally parent his children. I believe our family court system has to change and in a way, that recognizes the importance of fathers in the lives of their children. Every other weekend and one night a week is not a parent child relationship. It is court ordered visitation and until the courts stop ordering “visitation” and start giving fathers the same recognition given to mothers, children of divorce will continue to suffer. Below are excerpts from a few studies that back up my belief that equal parenting after divorce is what is in our "children’s best interest." •
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"Fatherless children are at a dramatically greater risk of drug and alcohol abuse, mental illness, suicide, poor educational performance, teen pregnancy, and criminality." Source: U.S. Department of Health and Human Services, National Center for Health Statistics, Survey on Child Health, Washington, DC, 1993. "Teenagers living in single-parent households are more likely to abuse alcohol and at an earlier age compared to children reared in two-parent households." Source: Terry E. Duncan, Susan C. Duncan and Hyman Hops, "The Effects of Family Cohesiveness and Peer Encouragement on the Development of Adolescent Alcohol Use: A Cohort-Sequential Approach to the Analysis of Longitudinal Data", Journal of Studies on Alcohol 55 (1994). "The absence of the father in the home affects significantly the behavior of adolescents and results in the greater use of alcohol and marijuana." Source: Deane Scott Berman "Risk Factors Leading to Adolescent Substance Abuse", Adolescence 30 (1995) A study of 156 victims of child sexual abuse found that the majority of the children came from disrupted or single-parent homes; only 31 percent of the children lived with both biological parents. Although stepfamilies make up only about 10 percent of all families, 27 percent of the abused children lived with either a stepfather or the mother's boyfriend. Source: Beverly Gomes-Schwartz, Jonathan Horowitz, and Albert P. Cardarelli, "Child Sexual Abuse Victims and Their Treatment", U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. Researchers in Michigan determined that "49 percent of all child abuse cases are committed by single mothers." Source: Joan Ditson and Sharon Shay, "A Study of Child Abuse in Lansing, Michigan", Child Abuse and Neglect, 8 (1984). "A family structure index, a composite index based on the annual rate of children involved in divorce and the percentage of families with children present that are female headed is a strong predictor of suicide among young adult and adolescent white males." Source: Patricia L. McCall and Kenneth C. Land, "Trends in White Page | 15
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Male Adolescent, Young-Adult and Elderly Suicide: Are There Common Underlying Structural Factors?" Social Science Research 23, 1994. In a study of 146 adolescent friends of 26 adolescent suicide victims, teens living in single-parent families are not only more likely to commit suicide but also more likely to suffer from psychological disorders, when compared to teens living in intact families. Source: David A. Brent, et al. "Post-traumatic Stress Disorder in Peers of Adolescent Suicide Victims: Predisposing Factors and Phenomenology.” Journal of the American Academy of Child and Adolescent Psychiatry 34, 1995. "Boys who grow up in father-absent homes are more likely that those in fatherpresent homes to have trouble establishing appropriate sex roles and gender identity." Source: P.L. Adams, J.R. Milner, and N.A. Schrepf, "Fatherless Children", New York, Wiley Press, 1984. "In 1988, a study of preschool children admitted to New Orleans hospitals as psychiatric patients over a 34-month period found that nearly 80 percent came from fatherless homes." Source: Jack Block, et al. "Parental Functioning and the Home Environment in Families of Divorce", Journal of the American Academy of Child and Adolescent Psychiatry, 27 (1988) States with high levels of joint physical custody awards (over 30%) in 1989 and 1990 have shown significantly greater declines in divorce rates in following years through 1995, compared with other states. Divorce rates declined nearly four times faster in high joint custody states, compared with states where joint physical custody is rare. As a result, the states with high levels of joint custody now have significantly lower divorce rates on average than other states. States that favored sole custody also had more divorces involving children. These findings indicate that public policies promoting sole custody may be contributing to the high divorce rate.
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Are joint custody and shared parenting a child’s right?
In France, nearly three-quarters of the children of divorced couples see their fathers only one weekend every fifteen days.
Many families with children separate all around the world. In France, for instance, nearly 200,000 children per year are affected by the divorce of their parents. After divorce, just over seven out of ten children (73%) live only with their mother and visit their father on alternate weekends. This phenomenon begs the question of the shortand long-term fate of these children, particularly in light of research showing that the active involvement of both parents in children’s lives is vital to their development and well-being. The United Nations Convention on the Rights of the Child (1989), as well as the European Union Charter of Fundamental Rights (2011, Article 24), mandates that children should be allowed to maintain meaningful relationships with both of their parents. In parallel, the father’s involvement in rearing and childcare tasks in the family has grown significantly in recent decades, which in association with the salience of mothers’ engagement in labour market participation, has called for new family arrangements that need to be taken into account in public policies. Most importantly, recent studies have clearly demonstrated that children’s ongoing relationships with both parents are vital, regardless of children’s age and situation. Page | 17
These convergences raise the question about needed reforms in social-legal policies and the therapeutic practices focused in post-divorce/separation relationships and living arrangements, in order to improve the welfare, development, and the “best interests” of children whose parents live apart. Additionally, they point out to the importance of raising public awareness about the importance of carrying out these reforms.
The right to maintain regular relations with both parents The Convention on the Right of the Child, Article 9-3, emphasizes “the right of a child separated from both parents or one of them to regularly maintain personal relationships and direct contact with both parents, unless it is contrary to the best interests of the child”. This right is most salient to situations of parental separation, referred to in Article 9-1, which states that, “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” However, neither children’s rights nor the definition of their best interests is a straight forward definition, either in the Convention or in family laws. These concepts need to be interpreted according to the unique situation and circumstances of each child. This interpretation falls under the responsibility of the judges, but it is also the concern of international organizations focused on the well-being of children. Thus, a conference under the aegis of the Council of Europe concluded that: “There is no comprehensive definition of the concept [‘best interests of the child’], and that its vagueness has resulted in practical difficulties for those trying to apply it. Some suggest that ‘best interests’ should therefore only be used when necessary, appropriate and feasible for advancing children’s rights, whereas others see the flexibility of the concept as its strong point.” We advocate a “best interests of the child from the perspective of the child” approach to replace the current standard, taking into account the results of child-focused research on the consequences of parental divorce on children’s well-being.
The balance between work and family life The recognition that the child benefits from both the care and close relationships with both parents reflects changes toward more equal divisions of parenting and domestic tasks between mothers and fathers, as well as in the role of each in work-family articulation, in the context of the dual earner family model. This means that the male breadwinner/female housewife and caregiver family model has become obsolete either as a family practice or as a basis for family policies. Page | 18
Social and political advances have resulted in girls’ access to higher education and women’s integration into the professions. Undeniably, further progress remains in this regard. For instance, maternity leave should be adapted to allow for better retention in employment, and paternity leave should be extended to allow fathers to build, maintain or strengthen ties with babies and very young children. Current psychological research demonstrates that there is no competition between children’s attachment to the father and mother. Instead, children are predisposed to build and enjoy multiple attachment bonds. Mothers are not necessarily, by nature, more sensitive and responsive to children than fathers. A key factor in the development of attachment bonds is the amount of time spent interacting with the child: the more the parent is engaged in the care of the infant and child, the more sensitive and responsive the parent becomes to the child’s signals. A balance between work, family and personal life, allowing both parents to build a secure bond with their child, reinforces the application of Article 9-3 of the UNCRC. Since the children have established significant relationships with both parents, they must have a residential arrangement that allows them to maintain and preserve these relationships after divorce/separation.
The consequences of residential arrangements on health and welfare Current research converges in the results on the consequences of different residential arrangements of children whose parents have separated. The large-scale studies conducted in recent years are enlightening. Research from Sweden and other jurisdictions shows that young children (3-5 years old)who live in equal shared parenting have a level of well-being equivalent to that of the children from intact families. Parents and teachers, on the other hand, note psychological problems in children living mainly with one parent. Identical results are shown with teenagers aged 12-15. These results are independent of the socio-cultural level of parents. A study with 5,000 teenagers aged 10-18 confirms and clarifies these results: neither children in equal shared parenting nor their parents are disadvantaged or hampered for changing frequently their place of residence. In Norway, a study with more than 7,000 teenagers aged 16 to 19 does not show significant differences between teenagers living in equal shared parenting or nuclear families in terms of their physical health, their emotions and their social behaviour. On the other hand, in all cases and on almost all indicators, children and teenagers living in a single parent residence are disadvantaged. This does not mean that only sole residence is the cause of this situation. Studies conducted in the United States show that these benefits are also valid for very young children, under three years. Regardless of the level of conflict of the parents, their degree of study or income, the more the baby (1 year) or toddler (2 years) spent nights Page | 19
with his or her father, up to 50%, the more relationship with both his or her parents at the age of young adult (19 years) is healthy and balanced.
The best interests of the child in the 21st century International organizations and national courts are focused on preserving the well-being and best interests of children. However, many constraints to child well-being persist, and keep infants, toddlers, children and teenagers within a mother-centred mode of care and education in post-divorce/separation families. These barriers work to the detriment of children, fathers and mothers. The maternal deference standard is unfavourable to children, and seems contrary to article 2-2 of the UN CRC, which states that, “States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status […] of the child’s parents.” Parents’ and professionals’ reflections and decisions might be more relevant, if professional practices and legal judgments prioritize the terms of residence that allow the child to have “personal relationships and contacts with both parents’ to the maximum degree possible. The concept of the "best interest of the child in the 21st century’ was the focus of discussion and debate at the Fourth International Conference on Shared Parenting, to be held in Strasbourg, at the Palais de l’Europe, on 2018, November 22 and 23.
Attorney Tip of the Month! by Catherine Stuckart, Esq. Fathers have a lot of choices to make dealing with a divorce or separation. There are two difficult areas: what happens to the child(ren), and what happens to the property. If you wind up in family court or divorce court, the judge decides what is in the best interests of the child(ren), not you. Ditto the property. The question comes up: what is the best living arrangement for the child(ren)? Many parents feel strongly that shared co-parenting is best. What is the difference between shared co-parenting and joint custody? How about sole custody? As you may know by now, sole custody means one parent, typically the Page | 20
mother, gets the lion’s share of time with the child(ren). Joint custody usually involves one parent having physical right of residence and, frequently one parent, again often the mother, having control over important decisions. Fairly often, joint custody means that you will pay child support. True shared co-parenting is exactly what it sounds like: a father gets a chance to be more than a visitor to his child(ren). He has a full partnership with the mother in making decisions on such matters as day care, medical and dental care, schooling and so on. How does a father engage in shared co-parenting? A mother once described to me what her husband and she did to help their children adjust. They were able to agree that the children stayed in the marital residence, and the parents also had their own homes. Father and mother alternated being present in the marital home for quite a while. Father thus continued to be a full participant in his children’s lives. When the parents in this scenario decided their children were ready, they had the kids come to their separate homes. This also made it more possible for the parents to have other romantic relationships.
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