Should Equal Parenting Time be Presumed?
Hilary Linton is a well respected mediator, trainer and lawyer in Ontario. She writes a provocative blog about whether there should be a presumption of 50/50 in custody cases. I have reproduced her blog for you below. The Riverdale Mediation Blog always is an interesting read.
In response to Hilary's blog below, I feel the movement toward a presumption of 50/50 in custody cases is in response to the traditional, unspoken presumption held by some traditional judges that mothers are best suited to care for children. Of course a true "best interests" test would be best but unfortunately it seems the pendulum is, once again, moving in the opposite direction. Thanks Hillary for your excellent, thought-provoking blog.
Here is Hillary's blog.
Should equal parenting time be presumed?
The always-hot topic of post-divorce parenting time is once again in the news.
The Canadian Bar Association is speaking out against a Conservative bill that seeks to make 50-50 time sharing for children of divorce the norm.
Such a presumption, of course, puts the rights of parents ahead of the best interests of their children, but is hard to get the advocates of such legislation to understand this.
Without question, a 50-50 time sharing arrangement is often best for the child. But not so in all cases. The only way to arrive at the best possible plan for each child is to look at all the circumstances, in each separate case, of both parents and the child and tailor the parenting plan to meet that child’s needs.
To legislate any particular parenting plan as the presumptive norm would eliminate the “what is in the best interests of this child” analysis. And that would put children at risk of not having their needs met.
There are many cases where a 50-50 is not the best for the child. This does not make one parent better than the other. Nor does it mean the child will be estranged or alienated from the parent who is less involved in the day to day upbringing. Research is clear that a child’s bond with his or her parent is determined more by the quality of the time spent together than by the amount of time.
To presume that it will always be in the child’s best interests to live equally with each parent could seriously jeopardize the stability and well being of a child, especially a young one, who has formed different kinds of attachments to the parents. A presumption of a 50-50 arrangement ignores the possibility that what will be best for the child is a gradual change to allow the child to develop the kinds of safe attachments necessary to be parented differently from what the child has grown accustomed to.
It is unfair to the child that the onus of proving that any particular arrangement is NOT in the child’s best interests should fall on the parent who may in fact understand the child better but not have the resources to fight a legal battle. That is why mediation is almost always the best way for parents to determine, together, what will be in their child’s best interests.
The system is not broken. The “best interests of the child” test is the only one necessary and it works. Leave it be.
children are products of two parents. two genetic predispositions and two temperaments. 50/50 parenting is essential to tap in to the needs of the whole child. attachment is not necesarily to one parent only .... either mother or father but can be to more than one adult at a time or ie to both parents.....so especially when mediation does not work , 50/50 shared parenting must be the default as it is in the best interest of the children.
Why does 50/50 parenting not put the best interests of the child(ren) first? What message are we sending children by saying that children deserve both parents equally?
RE: Such a presumption, of course, puts the rights of parents ahead of the best interests of their children, but is hard to get the advocates of such legislation to understand this.
Donb't you think that we are currently 'de facto' legislating the opposite in the absence 50/50 parenting?
RE: To legislate any particular parenting plan as the presumptive norm would eliminate the “what is in the best interests of this child” analysis. And that would put children at risk of not having their needs met.
Please help me fins the criteria for this “best interests of the child” test so we can analyse that in an open forum, such as this one. Currently this "test" is much like the pre-Enron accounting practises... closed and what is open to be 'ausited' is very open to interpretation.
RE: The system is not broken. The “best interests of the child” test is the only one necessary and it works. Leave it be.
I agree, "a 50-50 time sharing arrangement is often best for the child" so when would it not? I submit;
1. danger/abuse - we have existing laws for that
2. mental health - we have existing laws for that IF it is such that someone is in danger
3. drug/alcohol abuse - we have existing laws for when substance abuse becomes a problem in society
(Perhaps you would be interested in learning more about Calloborative Law from me, and test a case where drug and alcohol testing is part of the court prepartion. If the parents agree to testing, you can be sure there is no problem. If a parent won't or cant, get that into court.)
RE: Without question, a 50-50 time sharing arrangement is often best for the child. But not so in all cases. The only way to arrive at the best possible plan for each child is to look at all the circumstances, in each separate case, of both parents and the child and tailor the parenting plan to meet that child’s needs.
Hillary, I made several posts and although I take a frim stance on my comments, I do not direct them at you. I thank you for opening this topic.
Feel free to openly respond so we can foster the type of debate that this topic deserves.
Also I invite you to contact me off-line, to discuss alternate methods of your practise that can be equally as lucrative.
Robert
This interesting discussion underscores my point. Those who see this as a "black and white" issue have a hard time understanding the "best interests" text. I don't blame them; it is a complex concept, not easy to define, and to understand it really requires a thorough reading of the relevant provisions of the legislation and a good understanding of the (very extensive and often case-specific) case law. Definitely not easy stuff. Thanks for the comments.
What about a situation where one child has never lives with one parent and after nearly a decade that parent decides they want a relationshiop with the child?? Should the child be forced to give up the activities they have come to know and enjoy simply because that parent decides they are entitiled to access??
Hi,
This is currently all new to me but what a learning curve the last year. My son is one year old and he was born out of wedlock. The mother refused 3 DNA tests but during this time of delaying proceeded to go to the registrar and register the birth certificate without the fathers name on it which I have proved I am by DNA.
From my research I have no parental rights once my name is not on the birth certificate only to pay maintenance each month which I am. She has also just recently left him in Bulgaria with her mom for a month without me knowing and he attended the hospital without me been notified.
I have attended court to have my name placed on the birth certificate but I have been told she is protected by the Hague Convention and she doesn’t have too. What's the rights of my son having the knowledge who his father is and not experiencing the “social embarrassment” of showing his passport as he grows up with “father unknown”
Be great to get your comments with valid points!!!!
Yes, i feel this may get worse without my name on my sons Birth Certificate as I'm very proud to be a dad...
Curious to know how the Courts will manage this when parents live in separate communities, yet close enough for one parent to feel they ought to have half time? Young children should not commute over an hour to/from school to the other bio-parent's home when they moved away, and pre-second-marriage they were not an active parent in the first place.
You see, in the best interests of children, it does not equate as 50/50 which is simply appeasing people who don't care to pay for someone else, especially their ex to raise their child. Once they find a new partner, they feel entitled to having their child as much as the other parent, although they do not partake in the parenting. This leaves the child/ren feeling alone. Although the non-residential parent wants the child of the first partner to be part of his family as much as the child is part of Mom's new family, that parent is often absent from the home for work, overtime work, and feels the child is fine with the new step-mom, whom may be equally a competent parent, but let's face it. If you were that child, you know what mom/dad's activities are, when they work etc... would you not prefer to be with your bio mom than another one who's trying to benefit from the increased finances from no longer having to pay support for the child? I have a problem with moms being replaced to hand over their children to the father who takes very little part in the actual parenting aspect. If they only want to take part in the time they have avail, they why make children feel this way? I have spoken to numerous adult children of separated families and it is almost always their preference to be with bio mom/dad where they can, even when they get along with the steps. If this has become all about equal rights of parents, then by default it is not equal rights. Moms as bio-parents ARE and WILL lose out, making this system no longer about "best interests of the child anymore" Children ought to be able to have a voice, without being made to feel they have to choose.
50/50 parenting would be ideal in the optimal situation where both parents work 9-5 mon.-fri. And both parents can provide the same schedules and routines for kids involved. Stability gives children security therefore giving them the freedom to be children. However not all parents can fit in to this optimal situation were they are able to communicate and respect eachother. Maybe they have a breakdown of communication or maybe even while married or co-existing one parent wasn't even present 50% of the time. Or maybe one parent is much more stable than other being able to provide daily routine and stability for the child while the other parent is all over the map unable to hold down a job or residents. Maybe there are numerous new partners being introduced to the child. Let's get real..... In the best interest of the child is something that the courts have never looked at. It is what works best for the parents..... When your child says I don't want to go and you have to say you have to cause it's your dads turn how is that in the best interests of the child? Or when one week they have a constant bedtime and meal time and the next week it is differant how is that in their best interest.... As an adult how stable would you feel if one week in lived in one house and the next in another. 50/50 is unrealistic and in alot cases didn't even exist when the parents were co-existing together. Parenting time be shared but not expense of stability for the children. 50/50 parenting teaches children how to be better manipulators and children that are insecure and unstable....
I see some people in your blog think that splitting the life of a child in half is in his or her best interest.
Does it mean a child will be forced to go to two different schools? How do you "split" a child 50/50 when the parents live 100 km away? Where is the stability that every child is entitled to specially from the emotional point of view? Don't you think a child has the right of one home where to live and to come back?
50/50 would be terrible for children, from emotional attachment point of view, especially for children under 10.
Women provide emotional resonance to a child better than men, in 95% cases, that's why "traditional practice" gave mothers priority in custody.
I hope judges and lawyers will listen what specialists in child development are saying, and not treat children as a type of property, defending "equal rights of 2 parties".
Of course the Bar is opposed why would they not be? This would provide parents with an equal footing and of course the lawyers will lose millions of dollars in not being able to argue this in court.
Womens groups too are opposed to this regulation which even Great Britan has adopted.
Yup lawyers!