I have met and heard the tragic stories of many parents. PA is a function, by and large, of a custodial ex-partner, although some alienation can start while the couple is still together.

This blog is a story of experiences and observations of dysfunctional Family Law (FLAW), an arena pitting parent against parent, with children as the prize. Due to the gender bias in Family Law, that I have observed, this Blog has evolved from a focus solely on PA to one of the broader Family/Children's Rights area and the impact of Feminist mythology on Canadian Jurisprudence and the Divorce Industry.

Monday, September 21, 2009

Lawyers weekly ~ Why custody labels matter

Here's the legal mindset shared parenting advocates are facing. She describes the OZ situation as creating increased conflict but offers no attribution for any of the comments. Her conclusion is likely based on anecdotal reports and highly biased feminist articles in OZ newspapers or blogs. There is no conclusive scientific evidence the shared parenting regime in OZ has created overall greater conflict. She ignores the situation in dozens of jurisdictions who have this in place across Europe and in many USA states.
I leave it to the reader to draw their own conclusions about why this so called "award winning lawyer" with a "boutique" practice wants the status quo with a custodial label. Can you imagine someone touting their firm as a "boutique" (A small business offering specialized products and services: an investment boutique; a health-care boutique - now a place to shop for family law ) when involved in the destruction of families! Could it be she is a victim oriented feminist with an agenda? She doesn't mention which parent should wear the custody label but I think we can certainly guess accurately without benefit of any scientific analysis. What's your opinion - you now have mine. Here's the real facts relating to Shared Equal Parenting as opposed to the idle and vacuous chatter of a lawyer with a vested interest. Note item 4 in particular. This is from EXECUTIVE SUMMARY CHILD CUSTODY, ACCESS AND PARENTAL RESPONSIBILITY: THE SEARCH FOR A JUST AND EQUITABLE STANDARD

Edward Kruk, M.S.W., Ph.D. The University of British Columbia December, 2008
  1. Sole maternal custody often leads to parental alienation and father absence, and father absence is associated with negative child outcomes. Eighty five per cent of youth in prison are fatherless; 71 per cent of high school dropouts are fatherless; 90 per cent of runaway children are fatherless; and fatherless youth exhibit higher levels of depression and suicide, delinquency, promiscuity and teen pregnancy, behavioural problems and illicit and licit substance abuse (Statistics Canada, 2005; Crowder and Teachman, 2004; Ellis et al., 2003; Ringback Weitoft et al., 2003; Jeynes, 2001; Leonard et al., 2005; McCue Horwitz et al,, 2003; McMunn, 2001; Margolin and Craft, 1989; Blankenhorn, 1995; Popenoe, 1996; Vitz, 2000; Alexander, 2003). These studies also found that fatherless youth are more likely to be victims of exploitation and abuse, as father absence through divorce is strongly associated with diminished self-concepts in children (Parish, 1987).
  2. Children of divorce want equal time with their parents and consider shared parenting to be in their best interests. Seventy per cent of children of divorce believe that equal amounts of time with each parent is the best living arrangement for children, and children who have had equal time arrangements have the best relations with each of their parents after divorce (Fabricius, 2003).
  3. A recent meta-analysis of the major North American studies comparing sole and joint physical custody arrangements has shown that children in joint custody arrangements fare significantly better on all adjustment measures than children who live in sole custody arrangements (Bauserman, 2002). Bauserman compared child adjustment in joint physical and joint legal custody settings with sole (maternal and paternal) custody settings, and also intact family settings, examined children’s general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, divorce-specific adjustment, as well as the degree and nature of ongoing conflict between parents. On every measure of adjustment, children in joint physical custody arrangements were faring significantly better than children in sole custody arrangements: “Children in joint custody arrangements had fewer behavior and emotional problems, higher self-esteem, and better family relations and school performance than children in sole custody arrangements.” The positive outcomes of joint custody were also evident among high-conflict couples.
  4. Inter-parental conflict decreases over time in shared custody arrangements, and increases in sole custody arrangements. Inter-parental cooperation increases over time in shared custody arrangements, and decreases in sole custody arrangements. One of the key findings of the Bauserman meta analysis was the unexpected pattern of decreasing parental conflict in joint custody families and the increase of conflict over time in sole custody families. The less a parent feels threatened by the loss of her or his child and the parental role, the less the likelihood of subsequent violence.
  5. Both U.S. and Canadian research indicates that mothers and fathers working outside the home now spend comparable amounts of time caring for their children. According to the most recent Health Canada research (Higgins and Duxbury, 2002), on average, each week mothers devote 11.1 hours to child care, fathers 10.5 hours. According to Statistics Canada (Marshall, 2006), men, although still less involved in primary child care, have significantly increased theirparticipation in recent years. As the gender difference in time spent in child care has diminished, shared parenting after separation has emerged as the norm among parents who are not involved in a legal contest over the custody of their children (Statistics Canada, 2004).
MJM
>

By Martha McCarthy September 25 2009 issue Most family lawyers in Ontario likely received at least one telephone call from a distraught client this winter following the series of national newspaper articles on parental alienation. Many of my clients called with a self-diagnosis: they were clearly “being alienated.” A handful of helpful clients clipped one of the articles out of the paper and mailed it to me personally. Sadly (but somehow not surprisingly) many of my clients had the pleasure of receiving a copy from a former spouse.

The dialogue surrounding alienation has caught the attention of not only the family law community, but also the public at large. Amidst the flurry of attention that it has garnered, we need to reflect on the reality that alienation does not occur in a vacuum. It exists as one of the many problems that lawyers, judges and other helping professionals face when confronted with a high-conflict family.

Although many issues surrounding alienation are hotly contested, it almost always occurs in the context of high-conflict families following a separation. High-conflict families exist and interact in a state of perpetual dysfunction and disorganization, which leads to further emotional and psychological strain.

Alienation or not, high-conflict families are not able to manage their interactions and communication at any level. They require, sometimes on a daily basis, the assistance and intervention of lawyers, judges, doctors, social workers and other helping professionals. They fight about travel, schooling, tutoring, soccer and music.

Tragically, in spite of the significant efforts made to identify and address the causes of conflict in post-separation families, we are confronted with not a decrease but an increase in high-conflict cases, including more alienating parents and alienated children. One of the major problems we face in dealing with high-conflict families arises from the major shift over the last ten years in our attitudes about identifiers and basic concepts of custody and access.

Structured definitions have become passé in the past decade, joint custody or label-free settlements have been considered by many to be the norm and requests for sole custody have become almost politically incorrect. This shift in attitudes is a result of a variety of social and political developments that have fundamentally altered the language of and attitudes about post-separation parenting roles across Canada.

In 1998, the Joint Senate House of Commons Committee on Custody and Access released its report, “For the Sake of the Children.” The report was the result of a political compromise reached when the federal child support guidelines were in the Senate and Senator Ann Cools imposed her fathers’ rights agenda on the process. The report suggested an increased emphasis on the maximum contact principle, a movement away from the language of “custody and access” and a presumption of joint custody in every case.

Although not adopted as law, the report and the fathers’ rights agenda have been highly influential on the public, legal and judicial mindset. There has been an increased preoccupation in custody and access litigation with elevating the maximum contact principle through the language of shared parenting.

Clients often feel pressured by mediators, mental health professionals, judges or their own counsel to agree to joint custody. “Just give it to him and the conflict will end;” “Why would you object?” and “Nothing will change anyhow; you will still make all the decisions in a practical sense” are the common arguments. I have said these things myself. When respected authorities put this kind of pressure on individuals who are already quaking under the emotional and financial costs of conflict, the result is pretty much assured: joint custody or label-free “deals.”

Sometimes spouses agree to these arrangements because they hope that conflict will abate if the other spouse’s role is ratified. Sometimes they believe that there will be few changes to the reality of the parenting roles and that a little joint custody label will not change that. In high-conflict cases, another compromise has been joint custody with the appointment of an arbitrator or parenting coordinator to assist with decisions that cannot be made jointly. Unfortunately, these rationales and compromises are almost always flawed.

Australia adopted radical new custody and access legislation in 2006 that established mandatory mediation of all custody cases and imposed a presumption of joint custody. The result has been increased conflict and custody litigation. This lesson translates to the issue of labels. Joint custody mixed with arbitration/parenting coordination can often create a forum for increased or continuing conflict by allowing access to a person who can be called, day or night, to referee issues that might actually not arise, or might get resolved naturally, if that opportunity for accessible conflict was not there.

Label-free arrangements can also lead to ongoing conflict and difficulty with third parties. Teachers, doctors and immigration officials require more than the language of “shared residency” or “parenting time.” In practice, many require opinion letters about what the terms mean, or refuse to take direction from one parent because they are unsure. In abduction and jurisdictional issues, the absence of custody can be devastating to an enforcement or Hague Convention proceeding. Police enforcement can also be very challenging without labels that everyone understands.

Sometimes the label the parties have put on their arrangements also matters to judges. In mobility cases, we are instructed by the Supreme Court to give the views of the custodial parent “great weight.” What is a court to make of a label-free parent, or the one who acts as a primary or sole parent but carries the label of joint? Or, when joint decision-making fails or parties become exhausted by parenting coordination, a material change is required and the judge wonders why he or she should change the former agreement, which the parties must have thought was in the best interests of their children at the time they settled.

While it is true that we all had good reasons and lofty ideas when we moved away from structured concepts, we need to re-examine these ideas in the context of high conflict cases. Parents and children who are embroiled in conflict need the certainty and stability that traditional concepts provide. Labels matter.

Martha McCarthy is a certified specialist in family law and the recipient of the Ontario Bar Association 2007 Award of Excellence in Family Law. She operates a boutique family law firm located in downtown Toronto.

http://www.lawyersweekly.ca/index.php?section=article&volume=29&number=19&article=2

My letter to the editor of the magazine: Tim Wilbur, Managing Editor
The Lawyers Weekly Suite 700 123 Commerce Valley Drive East Markham, ON L3T 7W8 My Dear Editor:
http://www.lawyersweekly.ca/index.php?section=article&volume=29&number=19&article=2 Ms. McCarthy appears to have some credentials as a lawyer but might I suggest her research on this is wanting with a lack of attribution in this article. She appears to denigrate Anne Cools who was one of the first proponents of Domestic Abuse Shelters in Canada. Is Ms. McCarthy a feminist who has something against Father Rights? She describes the Australian situation as creating increased conflict but offers no attribution for any of the comments. Her conclusion is likely based on anecdotal reports and highly biased feminist articles in OZ newspapers or blogs. There is no conclusive scientific evidence the shared parenting regime in OZ has created overall greater conflict. She also ignores the situation in dozens of jurisdictions who have this in place across Europe and in many USA states. If you wish an up-to-date compendium of the worlds jurisdictions having share-equal parenting I have the most comprehensive one in existence right here. http://parentalalienationcanada.blogspot.com/2009/05/custody-situations-in-various-countries.html She doesn't mention which parent should wear the custody label but hopefully it isn't females only which is now the case in over 90% of cases in Canada. Here's the real facts relating to Shared Equal Parenting scientifically done by a Canadian expert in custody matters. Note item 4 in particular. This is from "EXECUTIVE SUMMARY CHILD CUSTODY, ACCESS AND PARENTAL RESPONSIBILITY: THE SEARCH FOR A JUST AND EQUITABLE STANDARD" Edward Kruk, M.S.W., Ph.D. The University of British Columbia December, 2008 1. Sole maternal custody often leads to parental alienation and father absence, and father absence is associated with negative child outcomes. Eighty five per cent of youth in prison are fatherless; 71 per cent of high school dropouts are fatherless; 90 per cent of runaway children are fatherless; and fatherless youth exhibit higher levels of depression and suicide, delinquency, promiscuity and teen pregnancy, behavioural problems and illicit and licit substance abuse (Statistics Canada, 2005; Crowder and Teachman, 2004; Ellis et al., 2003; Ringback Weitoft et al., 2003; Jeynes, 2001; Leonard et al., 2005; McCue Horwitz et al,, 2003; McMunn, 2001; Margolin and Craft, 1989; Blankenhorn, 1995; Popenoe, 1996; Vitz, 2000; Alexander, 2003). These studies also found that fatherless youth are more likely to be victims of exploitation and abuse, as father absence through divorce is strongly associated with diminished self-concepts in children (Parish, 1987). 2. Children of divorce want equal time with their parents and consider shared parenting to be in their best interests. Seventy per cent of children of divorce believe that equal amounts of time with each parent is the best living arrangement for children, and children who have had equal time arrangements have the best relations with each of their parents after divorce (Fabricius, 2003). 3. A recent meta-analysis of the major North American studies comparing sole and joint physical custody arrangements has shown that children in joint custody arrangements fare significantly better on all adjustment measures than children who live in sole custody arrangements (Bauserman, 2002). Bauserman compared child adjustment in joint physical and joint legal custody settings with sole (maternal and paternal) custody settings, and also intact family settings, examined children’s general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, divorce-specific adjustment, as well as the degree and nature of ongoing conflict between parents. On every measure of adjustment, children in joint physical custody arrangements were faring significantly better than children in sole custody arrangements: “Children in joint custody arrangements had fewer behavior and emotional problems, higher self-esteem, and better family relations and school performance than children in sole custody arrangements.” The positive outcomes of joint custody were also evident among high-conflict couples. 4. Inter-parental conflict decreases over time in shared custody arrangements, and increases in sole custody arrangements. Inter-parental cooperation increases over time in shared custody arrangements, and decreases in sole custody arrangements. One of the key findings of the Bauserman meta analysis was the unexpected pattern of decreasing parental conflict in joint custody families and the increase of conflict over time in sole custody families. The less a parent feels threatened by the loss of her or his child and the parental role, the less the likelihood of subsequent violence. 5. Both U.S. and Canadian research indicates that mothers and fathers working outside the home now spend comparable amounts of time caring for their children. According to the most recent Health Canada research (Higgins and Duxbury, 2002), on average, each week mothers devote 11.1 hours to child care, fathers 10.5 hours. According to Statistics Canada (Marshall, 2006), men, although still less involved in primary child care, have significantly increased their participation in recent years. As the gender difference in time spent in child care has diminished, shared parenting after separation has emerged as the norm among parents who are not involved in a legal contest over the custody of their children (Statistics Canada, 2004). Michael J. Murphy Promote Bill C-422 Equal Shared Parenting