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The Equal Parent Presumption

The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting after Divorce

Copyright Date: 2013
Pages: 200
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  • Book Info
    The Equal Parent Presumption
    Book Description:

    In custody battles over the children of separated parents, the prevailing standard of evaluating what is in the "best interests of the child" has been scrutinized because of the discretionary nature of what is "best" and because of the bias in favour of the child residing in one "primary residence." In response, a consensus is beginning to emerge that it is vitally important that children maintain meaningful relationships with both parents after divorce. In The Equal Parenting Presumption, Edward Kruk proposes a child-focused approach based on a standard that considers the best interests of the child from the perspective of the child and a responsibility-to-needs orientation to social justice for children and families. Challenging previous research and received ideas, Kruk presents an evidence-based framework of equal parental responsibility as the most effective means of ensuring the protection of family relationships following divorce, and shielding children from ongoing parental conflict and family violence. The existing system of determining parental rights and responsibilities is harming families. The Equal Parenting Presumption addresses a major barrier to the principle of gender equality in parenting after divorce, and proposes a viable alternative to sole custody in the form of a legal presumption of shared and equal parenting.

    eISBN: 978-0-7735-9009-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. Preface
    (pp. ix-2)
  5. 1 Equal Parenting: Rights and Responsibilities
    (pp. 3-15)

    The subject of this book is parenting after divorce. Worldwide, one in four children experience the divorce of their parents each year (Nikolina 2012), and the rise in the number of children living through the divorce of their parents is an international phenomenon. Although the outcomes for some of these children are highly problematic, most parents are able to make sound, practical agreements about their care and residence. It is the problem-oriented pole of children and parents that is our concern.

    Parenting after divorce is one of the most contentious arenas of Canadian and international law. It is not a...

  6. 2 Parenting after Divorce: Federal and International Law
    (pp. 16-28)

    Family law in Canada is a complex overlay of statute law, common law, case law, and constitutional law. In Canada as else-where, the demise of the maternal presumption and its replacement by the principle that child custody ought to be decided according to what is in the best interests of the child occurred in the 1970s. In Canada, the maternal preference rule remained in place until the formal introduction of the best-interests-of-the-child standard via Canada’s current Divorce Act (1986), whose wording reflects a careful consideration for gender neutrality. Paradoxically, the new act coincided with a proportionally larger share of judicial...

  7. 3 New Developments in National and International Socio-legal Policy
    (pp. 29-46)

    The plethora of Canadian government policy and research papers and reports on parenting after divorce, as well as provincial government papers, have for the most part neither sought to delineate specific indicators related to the best-interests-of-the-child standard of judicial decision-making, nor addressed the issue of gender stratification in sole custody / primary residence decisions in contested cases. Federal and provincial / territorial reports on family law reform do, however, expressly endorse the need for judicial discretion in the determination of the best interests of the child and post-divorce parenting arrangements in contested cases. TheFederal-Provincial-Territorial Report on Child Custody and...

  8. 4 The Discretionary Best-Interests Standard and the Primary Residence Model
    (pp. 47-64)

    As reflected in government reports prepared by socio-legal scholars, and a recent policy statement by the Canadian Bar Association, the Canadian legal community largely opposes an equal or shared parenting presumption (Cohen and Gershbain 2001; Canadian Bar Association 2010), and strongly endorses retaining the discretionary best-interests-of-the-child standard as the primary criterion in the legal determination of parenting after divorce, and child custody and access, in contested cases. This chapter will critically examine the notion that children’s best interests and well-being after divorce are best served by sole custody or primary residence judgments, and provides a detailed overview of arguments for...

  9. 5 The Needs and Well-Being of Children of Divorce: Preservation of Parent-Child Relationships
    (pp. 65-85)

    Children’s relationships with their parents play a crucial role in shaping their social, emotional, personal, and cognitive development, and there is substantial literature documenting the adverse effects of disrupted parent-child relationships on children’s development and adjustment (Lamb 1999; Lamb et al 1999). The evidence further shows that children who are deprived of meaningful relationships with one of their parents are at greater risk psychologically, even when they are able to maintain good relationships with the other parent. Children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both parents, whether...

  10. 6 High Conflict, Family Violence, and Parenting after Divorce
    (pp. 86-97)

    Given the fact that inter-parental conflict is a key factor affecting children’s adjustment to divorce, it is not surprising that family violence is an integral issue in the parenting after divorce debate. Although it is generally agreed that unresolved, protracted high conflict between parents is harmful to children’s well-being, the position that equal or shared parenting is not in children’s best interests in cases in which parents are in conflict over post-divorce parenting arrangements is not supported by research (Fabricius et al 2011). And although there is general agreement that equal or shared parenting may be contraindicated in cases of...

  11. 7 Sixteen Arguments in Support of Equal Parenting
    (pp. 98-122)

    The case for equal parenting presented below is based upon the research literature discussed in chapters 5 and 6. Given this data and the drawbacks of the best-interests-of-the-child standard and the harms attendant to the sole custody / primary residence model detailed in chapter 4, each of the sixteen arguments that follow may be sufficient reason to adopt equal parenting as a viable alternative to the sole custody / primary residence approach; combined, they are a powerful testament to the urgent need for law reform in the direction of an equal parenting presumption. Recent research studies cited in support of...

  12. 8 The Equal-Parental-Responsibility Presumption: A Four-Pillar Approach to the Legal Determination of Parenting after Divorce
    (pp. 123-147)

    It is generally agreed among divorce scholars, practitioners, and policymakers that any reform of parenting after divorce law must ensure that children’s basic needs and interests are addressed to the fullest extent possible. This requires an understanding of children’s fundamental needs in the divorce transition and a corresponding set of parental and societal responsibilities to those needs. As the preceding chapters have shown, a new, non-discretionary standard of the best interests of the child from the perspective of the child is required, which includes serious consideration of what children themselves have identified as their core needs in the divorce transition;...

  13. 9 Specific Challenges and Recommendations
    (pp. 148-159)

    In addition to the provision of support programs to facilitate the development of parenting plans and ongoing services to ensure their success, particularly for high conflict families, there are a number of linked issues that must be considered if equal parenting is to be a realistic objective for the majority of families in conflict upon divorce. Many of these issues are the fallout of the present adversarial winner-take-all sole custody system, and are discussed briefly in this chapter as specific challenges to be over-come and as additional recommendations to the four-pillar approach discussed in chapter 8. These include post-traumatic stress...

  14. 10 Conclusion
    (pp. 160-168)

    In stating the case for the institution of a rebuttable legal presumption of equal parental responsibility in situations of contested parenting after divorce, I have aimed toward clarifying the current state of knowledge on the matter of the best interests of the child in the divorce transition. The arguments I make rest upon the principle that the needs and interests of children should be the paramount consideration in the legal arena, and on the fact that these best interests need to be clearly defined and based on available research evidence regarding the most important factors associated with children’s well-being after...

  15. Bibliography
    (pp. 169-194)
  16. Index
    (pp. 195-206)