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Jan. 10, 2019-Prof. Sanford Braver Responds #2

GCC Introduction: We continue today with the remainder of our excerpt from Prof. Sanford Braver’s critique of the AFCC’s Think Tank report.

Page 178: I also would like to comment here on a seeming paradox. It is now reasonably well known that very few decrees (2-10%; Braver & O’Connell, 1998; Maccoby & Mnookin, 1992; Logan et al., 2003) are actually adjudicated by judges; instead, most parenting arrangements are (ultimately) decided by the parents themselves. So does it really matter what the law says or what presumption is in force? Of course it does, but only symbolically. Fabricius et al. (2010) provide strong evidence that the buzz among divorce professionals about what is “the best”-and/or the most judge-preferred- arrangement exerts heavy, perhaps decisive, influence on the arrangements most parents eventually settle upon.

Sanford L. Braver, The costs and pitfalls of individualizing decisions and incentivizing conflict: a comment on AFCC’s think tank: Report on shared parenting, Fam Ct Rev, Vol. 52 No. 2, April 2014, pp. 175-180

GCC further comments on what Prof. Braver wrote:

Braver’s comment about symbolic importance can be misinterpreted to mean that no presumption at all is necessary. I believe that he actually means that what the statute says is indeed very important. Lawyers and litigants look to the law to prompt just what is possible, what is attainable. Lawyers know that people negotiate under the ‘shadow of the law’. If the societal expectation is that judges will normally favour moms, then that is the way that most settlements will go. Arizona and Australia, for example, do not have a truly rebuttable presumption in favour of ESP. Yet, their governing laws (which are worded somewhat similar to parts of Canada’s Divorce Act) have provided an impressive impetus to ESP. We can safely say that in Canada, Divorce Act sections that encourage parents to behave and share maximum time one with the other, have not by and large, succeeded in encouraging significantly greater systemic incidences of ESP as has been the case in jurisdictions such as Arizona and Australia. If we as a society presume reasonable fitness of both parents (unless proven otherwise), then both time and decision making should, in first instance, be shared approximately equally.

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