A Child Custody Argument – Equal Parenting Presumption

If you’re dealing with child custody arguments, learn about equal parenting presumption after divorce. It might help you come to a custody arrangement that suits both you and your ex – as well as your children.

Child Custody Argument
Equal Parenting Presumption After Divorce

Speaking of children – read Co-Parenting 101: Helping Your Kids Thrive in Two Households After Divorce by Deesha Philyaw and Michael D. Thomas if you’re arguing about child custody arrangements. Even if your ex doesn’t learn how to help your kids cope with divorce, you can do all you can to support them.

A presumption of equal parenting with rebuttal means children will continue to reside with each of their parents after a divorce, with both parents retaining physical and legal custody of their children. Parenting time and decision-making responsibilities would be shared as equally as possible.

An equal parenting presumption is the opposite of what often happens in custody arrangements. Usually, if divorcing parents can’t decide on custody arrangements, the judge makes a decision. A shared presumption of equal parenting is different – it puts both parents on a level playing (parenting) field.

This article is part of a paper I wrote for my social justice class – I’m working on my Master’s of Social Work at UBC in Vancouver. I was fascinated by this topic: should a judge decide who gets custody of the kids after divorce, or should there be an automatic assumption of shared parenting? This is in cases where custody arrangements can’t be decided by the divorcing parents.

This child custody argument is controversial, especially if you’re a parent who has direct experience with custody litigation and battles. Here, I describe what a rebuttable model of equal parenting is. “Rebuttable” simply means that if a parent is abusive or poses a risk to the children, then equal parenting won’t be allowed because it’s  not the best interests of the child.

What is Equal Parenting After Divorce?

The rebuttable model of an equal parenting presumption is a child-centered framework that not only puts the best interests of the child at the forefront, but also considers the perspectives of both feminist and fathers’ groups. It protects children in cases of domestic violence and child abuse, and decreases the likelihood of discrimination against children of divorce on the basis of parental status.

The rebuttable presumption of equal parenting in contested child custody cases is defined by children spending equal amounts of time in each parents’ household, and includes a distinctive four-stage process: 1) the legal expectation of a parenting plan before any court hearing; 2) a legal expectation that if parents cannot agree on a parenting plan, then existing parent-child relationships will continue after separation; 3) a rebuttal legal presumption of equal parenting time in cases where both parents were primary caregivers before divorce, and are in dispute over the relative proportion of time each parent spent performing child caregiving functions before divorce; and 4) establish a rebuttable legal presumption against equal parenting in cases where it is established that a child needs protection from a parent.

This is in contested cases of child custody, family violence and child abuse. The well-being of children is at the forefront of this concept, and it is accepted that the children’s well-being should be of primary importance – including the maintenance of healthy, meaningful, loving relationships with each of the parents. If the children are exposed to violence, abuse, or neglect, then measures would need to be put into place to protect the children and ensure their well-being.

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The equal parenting presumption as a custody arrangement means that divorcing couples need to have a civil relationship. Read Can Divorced Partners Be Friends?

A key factor in adjusting to divorce to children is maintaining a meaningful relationship with both parents. Further, a child must be protected from ongoing exposure to high conflict. Stable and consistent routines are important, and so is a measure of financial stability. Proponents of the shared presumption of equal parenting with rebuttal believe that the best way to ensure healthy parent-child relationships, stability, consistency, and protection of a child’s well-being is through an automatic presumption that equal parenting measures will be enacted at the onset of divorce proceedings.

The best interests of the child is the primary consideration of the shared presumption concept, and a pivotal factor in a child’s best interests is the active, consistent, responsible involvement of both parents in his or her life (Kruk, 2011). The current Divorce Act does not put the child’s best interest at the forefront of the divorce; on the contrary, sole custody can in fact create conflict, character assassinations, unnecessary litigation, and even forays into Parental Alienation Syndrome. After a divorce, children are harmed by broken attachments, parental estrangement, parental conflict, instability, and inconsistent routines. This increases the psychological distress children face after divorce substantially (Kelly, 2000).

A sole custody presumption – like the Divorce Act currently posits – inherently infringes upon a child’s rights because it denies the child a full, meaningful relationship with the non-custodial parent. In Who Gets Custody of the Children After the Divorce?, I describe how the current divorce act in BC affects child custody disbutes. These parents do not have satisfactory custodial agreements – and a rebuttable presumption of equal parenting would offer them this opportunity. Further, this a rebuttable shared parenting mandate may encourage social and legal institutions to focus on supporting parents as they work towards determining and responding to the best interests of their children.

equal parenting after divorce
“A Child Custody Argument – Equal Parenting Presumption” image by Laurie

There is growing evidence that maintaining parent-child relationships after divorce is extremely important to children, even in high conflict situations. Sole custody arrangements don’t support these relationships. Further, the public in general is growing more dissatisfied over sole custody and support, and is forcing legislatures to reconsider the automatic rendering of sole custody arrangements. Not having access to your child – whether you’re a mother or a father – is a significant cause of post-divorce pain, conflict, grief, and even trauma for both parents and children. It can damage the non-custodial parent’s relationship with his or her child, and cause alienation, financial loss, legal abuse, and even false allegations. I do not believe it is right, healthy, or good for a mother to be automatically awarded sole custody of a child just because she is the mother. This is not in the best interests of the child, which is (or should be) the foundation of the decisions we make on behalf of children.

If you haven’t broached the subject of child custody because you haven’t left your marriage, read How to Tell Your Husband You Want a Divorce.

If a shared presumption of equal parenting is to be successful, legislative supports such as parent education programs, therapeutic family mediation, parenting coordination, and other specialized programs for high conflict families need to be in place. Proponents of this concept of post-divorce custody arrangements do not assume that families will live “happily ever after” simply because both parents are presumed equally responsible for their children.

If you’re thinking about divorce but don’t want to split, read How Do I Save My Marriage From Divorce? 6 Ways to Reconnect.

What do you think of a presumption of equal parenting after divorce?

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