The collision between children’s best interests and fathers’ “rights”

If the first article in the Toronto Star series on post-separation parenting (running October 3 – 7) is an illustration of what is to come, it appears the Star has decided to take an unapologetically sympathetic position towards fathers that does not reflect the reality of many Canadian families, in particular those where there has been violence.

The article begins with the provocative headline: "Why fathers can’t catch a break," and proceeds to detail stories about men who are not spending as much time with their children as they would like to after the parents’ relationship ends because, they claim, the courts show favoritism towards mothers.

While these stories, which anyone who is interested can read at length on any of a number of fathers’ rights websites, tell dramatic, emotional tales about fathers torn from their children because of the actions of vindictive, lying mothers who want to alienate their children from the father while also bankrupting him by seeking exorbitant child and spousal support awards, the facts tell a very different story.

Unfortunately, those facts are mostly missing from this article. The author, Sue Pigg, has chosen to interview professionals who, almost without exception, seem to accept at face value the contention of fathers’ rights advocates, despite the lack of empirical evidence to support their position.

For instance, Australian law professor Patrick Parkinson is quoted in the article as saying: “There has been a significant change in fathers’ attitudes towards parenting after separation.” He also readily admits, of men’s pre-separation parenting, that: “They’re still not doing nearly as much as women,” but does not seem to think this is relevant to determining appropriate custody arrangements for children.

Indeed, where fathers have been active, engaged parents before separation, and where there are no abuse-related issues, they should continue to be active, engaged parents after separation, and most often they do. This is what is in the best interests of the children -- the criterion used across Canada when courts become involved in custody and access disputes. There is no question about this.

There is also little doubt that some fathers are more involved with their children than they were a generation ago. My daughter and her partner are an excellent example of this. In the eight years since their first son was born, they have variously both worked part time so one of them could always be at home with the kids or have taken turns working full time. My grandsons have the privilege of seeing both their mother and their father as nurturing caregivers and as workers outside the home.

In the unfortunate (and unanticipated!) event that their relationship should end, it would be best for the children to spend as much time as possible with each parent and that my daughter and her partner work hard to communicate positively about child-related decisions, to attend key events in their children’s lives together and otherwise to ensure the children benefit from having two involved, caring parents.

However, my daughter’s family is not typical. In the vast majority of families, women continue to be the primary caregivers for children and to do most of the housework. According to data gathered in the 2005 General Social Survey, women spend 4.3 hours per day compared to men’s 2.5 on unpaid housework and child care. This at a time when more and more women, especially those with young children, are employed outside the home: by 2004, 65% of women with children under the age of 3 were working, a figure which is more than double the employment rate for women in this category just 30 years before.

Women also miss more time from work because of family responsibilities: in an average week in 2004, 5% of women and only 2% of men missed work time for this reason. Overall that year, women missed 10 days of work and men just 1.5 to take care of family responsibilities.

The fact is that men are far from shut out in family court: in 44% of custody cases that go to court, the outcome is an order for joint custody, which is more than double the number from the mid 1990s and four times the figure when compared to the late 1980s. The rate at which women are awarded sole custody in cases that go to court has fallen from more than 70% to just 44% from the late 1980s to 2003.

This seems a more than adequate reflection of the slowly increasing involvement of fathers in their children’s lives, pre-separation.

Shared parenting arrangements are great where the parents have the abilities and commitment to make them work. But this is not easy, even for people who have a relatively equal balance of power in their relationship. Hurt feelings can often make it difficult for adults to remember to put their own emotions aside in favour of their children’s best interests.

Women who have been abused face a very different set of challenges. In these kinds of cases, the father pursuing custody or extremely extensive access, is more often concerned about his “rights” and his ability to continue to control his ex-partner than he is about the best interests of the children.

The issue is not whether fathers can catch a break but how to ensure that women and children who flee abusive situations can be kept safe.

Pigg’s article continues with the statement that fathers are “forbidden from their child’s graduation because it’s not their visitation day” and that mothers “refuse to hand over the kids when Dad is 10 minutes late,” as though these were common occurrences.

My own experience when I practiced law was quite different. While my clients often vented to me about their frustration and anger with their ex-partners, few of them turned that venting into action, understanding that it was best for the kids to spend time with their father.

In fact, my office was often very busy on Monday mornings with telephone calls and visits from clients whose ex-partners had failed to show up for their weekend access.

I cannot tell you how many women described their children, backpacks at the ready, waiting fruitlessly for dad to show up; how many women had to cancel work or social plans -- or pay for child care -- because their ex did not call or show up.

These women would have been delighted for their children to spend more time with their fathers and wondered why the courts could do nothing to force a dad who had fought for access to actually use it.

Jan Langlois, who works with the John Howard Society of Durham Region, which has started a support group for fathers dealing with family court, is quoted by Pigg as saying that women who defy access orders have “virtual immunity” from the courts.

That is not how most abused women see it, many of whom report feeling pressured to send kids on access visits even when it may not be appropriate (the child is very sick, the father shows up intoxicated or aggressive) because they are so afraid they will get in trouble with the courts if they don’t.

Langlois also appears to take aim at the government’s “zero tolerance” approach to domestic violence: “By alleging assault, a woman can pretty much assure that an ex-spouse will be removed from the house and tied up in a costly criminal trial during which she’ll have interim custody of the kids, setting the stage for how the case proceeds.”

In fact, only about 25% of woman assault cases are reported to the police. Far more women just leave, taking whatever steps they can to protect their safety and that of their children through the family court. There are no criminal charges and no costly criminal trial. Of course, this can backfire on women who then raise the issue of abuse in the family court proceedings, because they have no independent “evidence” to put before the court.

Ironically, beginning in the 1990s, women experienced a serious backlash as a result of the “mandatory charging” policy Langlois is so concerned about. Police, often confronted with two very different stories when responding to a domestic assault call, began charging both parties without taking the time to conduct a proper investigation to determine who was the primary or dominant aggressor. New policy initiatives and training have begun to bring an end to this practice, but the reality still exists for many abused women, especially those who are marginalized by reason of race, skin colour or immigration status, that a call to the police creates the possibility that charges will be inappropriately laid against them.

There is absolutely no guarantee that, even if the abusive husband is charged, he will lose his access to the children. In all likelihood, his bail conditions will explicitly permit access and may even require contact between the parents to facilitate that access. Women often must exist in a state of fear and anxiety about their safety and the safety of their children because bail conditions do so little to provide meaningful protection.

This article flies in the face of the Toronto Star’s long history of reporting accurately and fairly on violence against women issues. We can only hope that the remaining articles in this series show us a different, more accurate perspective. If not, women and children will have been unfairly treated and possibly exposed to more abuse as they try to find their way through the family law process.

Stay tuned for more comments on this series.

Read the Star article: http://www.parentcentral.ca/parent/newsfeatures/article/704075--divorced-dads-can-t-catch-a-break