Gene C. Colman Family Law Centre
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An Ontario Family Law Lawyer who knows how to STRATEGIZE

CHILD CUSTODY LAWS NEED SEA SHIFT SOCIAL POLICY CHANGES

Social policy drives drives child custody laws. . Until now, common "wisdom" has told us that kids are generally better off with one parent primarily; usually that has translated into maternal sole custody.

Where intimate relationships are fractured, dads have to bring forth much more evidence just to maintain, let alone expand, their residential time with their kids. It's the same whether in court, in mediation, or in negotiations. We are imprisoned by our gender biases, myths and stereotypes. So, how do we change child custody laws?

One myth is that high conflict parents can't possibly share children's time with anything approaching equality. Judges, custody evaluators and other professionals involved in making custody decisions will tell you that where there is high conflict, one parent's time with the kids needs to be limited in order to shield the kids from the discord. The rationale for this position is the common wisdom that we all know that being repeatedly caught in the middle of high, ongoing conflict is surely bad for kids in intact or in separated families.

But after parents separate, the question is whether having the children live primarily with only one parent in sole physical custody is a better outcome for kids?

Prof. Linda Nielsen (Wake Forest University) has published a ground breaking paper in the American Psychological Association's journal - Psychology, Public Policy, and Law 2017, Vol. 23, No. 2, 211-21.

Nielsen analyzes scores of social science studies on conflict, coparenting and children's outcomes in shared vs. sole physical custody. Her discoveries are as surprising as they are mind boggling. Nielsen concludes:

Recent research does not support the idea that conflict-including high legal conflict-should rule out joint physical custody as the arrangement that best serves children's interests. Parents with joint physical custody do not generally have significantly less conflict or more cooperative relationships than parents with sole physical custody. Conflict and poor coparenting are not linked to worse outcomes for children in joint physical custody than in sole physical custody. The quality of the parent-child relationship is a better predictor than conflict of children's outcomes, with the exception of the most extreme forms of conflict to which some children are exposed. While continuing our efforts to improve parents' relationships with one another, we should become more invested in helping both parents maintain and strengthen their relationships with their children.

Our social policy is based on a plethora of distorted and outright wrong assumptions (Colman's interpretation, not the professor's words). Nielsen's impeccable research strongly supports her key findings. Here are the four bedrock takeaways from her astounding paper:

1. Limiting Time: Limiting the time that children spend with one of their parents through Sole Parental Custody ("SPC") is not correlated with better outcomes for children, even when there is considerable conflict and a poor co-parenting relationship.

2. Conflict: The role that conflict plays is surprising based upon the empirical research:

a. Conflict and poor co-parenting are not linked to worse outcomes for children in Joint Physical Custody ("JPC") than in SPC.

b. Conflict should not rule out JPC as the arrangement that best serves children's interests.

c. JPC is not a panacea for conflict. Most JPC parents do not have substantially less conflict or more collaborative co-parenting relationships than SPC parents.

3. Quality of Relationship is key: The quality of the parent-child relationship is a better predictor than conflict of children's outcomes, with the exception of the most extreme forms of conflict to which some children are exposed.

4. JPC = Better Outcomes for kids: While JPC may not be a panacea, JPC is indeed associated with better outcomes for children than SPC, even when their parents do not initially both agree to the parenting plan and even when the conflict at the time of separation or in subsequent years is not low.

The implications are startling:

1. It is the quality of the relationship between parent and child that is all important as predicting better outcomes for kids on a wide range of axes.

2. Quality of relationship is enhanced by having the opportunity to parent your child normally - not just on weekends and not just occasionally on holidays. If you want children to be happier, better adjusted, and have fewer mental health issues, then taking all of the available data, JPC is your very best bet - even for high conflict cases.

It follows that if we want to do better for children, then we have to legislatively abolish the outmoded and scientifically incorrect assumptions that have until now driven our social and legal policies. We need a rebuttable presumption in favour of JPC, also known as "Equal Shared Parenting". Nielsen has drawn together the data from disparate sources and has shown that children benefit most from shared physical custody even when conflict is high and the parents cannot co-parent well. It's time for Canada to step up.

2 Comments

Neither surprising nor mind boggling!

What is entirely mind boggling is how men are reduced to indentured servitude by their ex wives who use the law of this land for their own vindictive purposes. That is absolutely criminal and does not serve the children well.

The very idea of expecting a man to pay some outrageous amount of after tax dollars to a woman, who is quite capable of working, but is told by a judge that she does not need to work and should be home with her children, is beyond comprehension. Then to add insult to injury the judge in her wisdom orders the father to pay daycare as well as child support and alimony and all the other sundry extras that add up to lots. In this day and age all couples need both partners working in order to subsist. A divorced woman can stay home and send her children to daycare??

After divorce there are two households to maintain and the man needs a place to be able to bring his children, he needs food and clothing for them because the woman will not send the clothing his hard earned dollars have purchased for his children. The man is reduced to penury while the woman lives the high life with many vacations and spas visits etc and nobody to tell her not to spend every penny the family earns. The irony of this is that it is the man who ends up losing his passport, drivers license and ultimately is jailed in Debtors Prison, an institution which was outlawed in the 19th century. Consequently, he becomes unemployable because he has a criminal record. This serves his children??

Marriage breakdown happen for lots of reasons. It seems in Canadian law "no fault divorce" translates to blame the man and make him suffer. It is no wonder so many men take their own lives.

Great article by Linda Nielsen. At ICSP 2017 conference in Boston (International Council on Shared Parenting) held 29-30 May, it was announced that there would be an issue dedicated to Shared Parenting research in "peer-reviewed" journal scheduled for early 2018.

The essence of the conference was distilled by Dr. Sandford Braver: “ 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 policy makers”. He further added” “I think Shared Parenting now has enough evidence...[that] the burden of proof should now fall to those who oppose it rather than those who promote it”.

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