CHILDREN ARE NOT WHOSE PROPERTY?

A legal presumption of shared parenting following divorce is not a patriarchal plot; it is a fundamental human right. An open letter to Justice Minister Anne Mclellan.

The report of the Special Senate-Commans Committee on Child Custody and Access having been dilivered. Canadians are awaiting the imminent response of Justice Minister Anne McLellan. To date, the case for a judicial presumption of shared parenting after divorce or separation has not been adequately outlined in the print news media. This article seeks to do that, and to make a public appeal to Ms. McLellan to do the right thing.

The case is best presented by focusing on the arguments standardly offered by Ms. McLellan and her political allies. Of particular interest are those expressed by Women's Minister Hedy Fry to the Committee and to the press; let us analyze her basic reasoning.

Parental Rights

Ms. Fry has made a central issie of the assertion "children are not property". On that ground she dismisses equal parental rights as irrelevant to the disposition of children in divorce cases. Only the best interests of the child should make that determination, she avers. Too many others have unthinkingly endorsed this argument. OF COURSE children are not property, like sticks of furniture; they have needs and rights. But so do parents have needs and rights. Let us pursue her resoning to its logical conclusion.

If parents were seen as having no rights, then at birth, all parents would have to convince a judge it is in the child's best interest for them -- instead of some unrelated person or persons -- to have custody of the child. Consider especially all those stable, middle-class couples desperate to adopt these days, and all those poor or less able couples and single women having babies. Imagine judges saying to biological parents: "Children are not property! How dare you try to keep this child for yourself, when her interests would be far better served in another home. When she is grown, having had all those advantages, she can then get to know you and her roots."

Would Ms. Fry really endorse a system in which parents have no legal rights? Hardly. As regards single mother in particular, she would likely make impassioned pleass about their pain and thir natural parental rights. Then how on earth could she talk, in this particular context, as if she did endorse such a view? The reason seems clear: under the status qua, it is overwhelmingly fathers who are having their children ripped away in divorce. With flip phrases, she dismisses fathers' natural rights and a mountain of fathers' pain.

The huge body of evidence of systemic discrimination against fathers in divorce courts cannot be presented here. But it is largely a remnant of the traditional division of labor which kept mother out of paid employments, to be home with the children, and fathers mostly out of hands-on childcare, to be at work providing for the mother and children.

Ironically, the same feminist establishment wich has fought (rightly) to dismantle the former half of this discrimination has clung tenaciously to the latter half; no flaming male chauvinist could have been any more determined to keep his traditional privileges. (It was not always so. In the 1970's, when egalitarians were still in control of feminist organizations, they supported joint custody.) This opposition to parental euality by sexist feminists, aided by sexist chivalrists, is another story to long to tell here. But the self serving arguments by the Women's Minister can be further exposed.

The "not property" arguments is offered by Ms. Fry in popposing the proposal for a judicial presumption of shared parenting -- joint legal custody and time-shared residential custody--follwing divorce. (For hard practicla reasons, the time-sharing need not be exactly 50-50; but some experts urge a bare minimum of 30% time with each parent.) From the fact that parents have natural rights, however, the presumption automatically follows that they should continue. The reason: such important rights can be terminated onlly for serious cause. Hence the burden is on others to prove that they should be ended. Placing the burden of proof in that way is simply what a presumption does.

Usurpation of individual rights by the state

This is part of what makes the traditional and current divorce system such a moral outrage: the state's wholesale appropriation of parental rights to itself --as if the chiuldren were its own "property" -- and shifting the burden onto the parent (read: the father) to prove he should not lose his child. The state has no moral right to "grant" custody --to give away what is it does not possess in the first place -- but only to intervene where individuals' own hehavior has relingquished their natural rights. That the state is already in the habit of taking away theis right without just cause does not make the act any less despotic.

To repeat, mother's and father's rights are only part of the equation; the rights of the children can outweigh them. That is why shared parenting is promotoed as a rebuttable presumption --not, as Ms. Fry and her allies falsely assert, as a 'blanket'rule covering all cases. (Standardly, the rebuttability is taken for granted, just as it is in the phrases 'presumption of innocence'.) This has long been recognized in regard to mother --a presumption that she should lose her child only if she is "unfit". By all rights and all compassion, it applies to fathers as well.

That parental legal rights shlould presumptively be equal rights follws also from the fact that marriage is supposed to be an equal partnership. That is the idea behind division of financial assets upon divorce. In a traditional-type marriage, for example, her caring directly for the children leaves him free to pursue financial gain; hence the fruits of his labors belong to her as well. And by the same token, his financial care giving to her and the children enables her to stay with them; hence the fruits of her labors are rightfully his as well. The sexist feminists, however, do not want equality in divorce. They want the mother to "have it all", the fruits of the labors of both, and the father to have nothing --except whatever she is willing to share.

It is crucial, then, to be clear on the parameters of this debate in Canada today. It is not about mother's rights vs. father's rights, such that one or the other must lose; the divorced father's groups all promote shared parenting. They know what it is like to lose one's children. No, the dispute is between unequal rights and equal rights. It is between the entrenched political power of the sexist feminists and sexist chivalrists, on the one hand, and desperate efforts by other men and women for change.

And Children's rights

Now for what is so marvelous about legal prsumption of joint custody: it also accords with the rights and wellbeing of children. Arguably, children have a natural right to the protection and care of both parents. And certainly, children's interests are far better served, in a large majority of cases, by having both parents a significant part of their lives.

There is no reasonable doubt about the latter. Both daily ovservation and a growing mass of sociological research attest to the suffering and emotional disability caused to children by father loss and father absence --with their later consequences in low achiewvement, juvenile crime, teen pregnancy and youth suicide. The research also revelas that a pittance of "visitation" with the father helps little.

Ms. Fry not only evades that evidence; she appeals to the minority of cases in which having a single good parent is less bad for the child than having a very bad two parent environment. This kodalithic argument has no force whatever against adopting a rebuttable presumption of shared parenting. What presumptions are for is the standard case; the existence of exceptional cases is precisely why they are made rebuttable.

Given the overwhelming arguments, the follwing fact is shocking: the present Divorce Act already allows judges to award joint custody, but they do not standardly do so. Unless the presumption is added to the law, this massive injustice will continue. It gets worse: even when "joint custody" is ordered, it is usually a weal shell of the real thing. It allows neither meaningful stewardship nor meaningful amounts of parenting time for one of the "joint" custodians. In arguing for the status quo, Ms Fry knows all of this.

She also pays lip service to the value of joint custody, saying she merely wants judges unconstrained by the presumption. ("There are...no generic legal answers. Each case is individual, and the courts should be allowed to make flexible judgments", etc...etc) But her arguing against presumptions in general is inincere. For in her presentation to the Committee and elsewhere, she has promoted multiple presumptions regarding custody, some evidently meant to be non-rebuttable. (And her scare-rhetoric about "forced joint custody" is sophistry; any decision by a court is state-backed coercion. The only alternative is "forced" sole custody.)

The workability argument

One argument the Women's Minister uses is singularly reveling. Joint custody can work "only where parents get along", she says. Though there is a valid concern here, as applied by her it is a program for subverting the rights and best interests of the children and one of the parents. For it means that one parent can avoid sharing simply by creating conflict --in which case existing prejudices will likely determine who gets sole custody. Indeed, the tactic is in constant use under current law, which (to repeat) allows but does not presume joint custody. Rewarding conflict is not in the best interests of children.

But the irony in the argument is this: much of the conflict in divorce is caused in the first place by the winner-take-all- system of sole custody. Faced with the terrible prospect of losing their children, both parents will often fight like wildcats.

Or else one of them will decide there is little hope of winning, or want to spare the children the pain of a nasty court battle, and just drop out of thier lives. Because of the overwhelming societal and judicial bias, it is nearly always the father who gives up. The fact that a large majority of custody cases are uncontested is cited by the Women's Minister as proof that the current system is working justly. Imagine her drawing the parallel conclusion from women's massive failure to seek careers in the 1950's.

But what about that valid element of the argument --the serious conflict which exist even without the highly adversarial divorce system? Again, this is one reason for making the presumption rebuttable. But the system has a duty of care --to the children and the parents --to help heal conflicts wherever possible.

The feminist establishment also opposes important attempts to do this --yet another story for another time. But one example is their opposition to the "friendly parent" rule: when conflict does make joint custody appear impossible, give sole custody to the parent most willing to foster the relationship between the children and the other parent. (In fact, this is already in the law --but is flagrantly ignored by Canada's judges.) In stark contrast to the conflict-trumps-joint-custody attitude, applying the friendly-parent rule as a rebuttalbe presumption would often encourage divorcing partner to get along well enought to make shared parenting work.

The truth is, conflicts between parents can be overcome. Just as people who could never stand to live together can still cooperate in the workplace, individuals who can no longer live together can continue to share parenting. Hundreds of thousands of former partners who thought they would hate each other forever have learned this lesson. And the recent introduction of such marvelous aids as co-parenting education and co-parenting plans (prior legal agreements on potentially contentious issues) is guiding them though. Suppose that, instead of being told by society that children are the natural property of one of them, divorcing couples are educated that they have an obligation to their children to continue sharing parenting --an obligation not to walk away, and also not to deprive the children of the other parent. Most of them will be able to do it. And that, to repeat, is what is in the best interest of the children.

Transcribed by Craig Mostowy - RSPN