Prepared by National Association of Women and the Law, November 1998
The media are continuing to spread the misinformation about custody and access that has been coming out of the Joint Senate/House of Commons Committee.
There has been a recent spate of op-ed pieces, articles and letters in the major newspapers on the issue of custody and access that has been misleading the public.
It is bad enough that committee hearings and their interim report are one sided and groundless; father’s rights groups or individual fathers dominated the witness list. Women’s groups were repeatedly denied access to the hearings and when they were invited to appear were jeered, mocked and their well-researched presentations were derided. Some women’s groups said that they were laughed at when they testified about wife battering and abuse. To make matters worse, the media is ensuring that this misinformation and this attitude are going public.
DEBUNKING THE MYTHS ABOUT CUSTODY AND ACCESS
The hearings and media coverage of this issue present a completely inaccurate picture of custody and access upon divorce. They would have you believe that most divorced and separated families have endless disputes and that fathers are regularly ostracized from the children. In fact, most divorcing couples work out custody and access issues without going to court and after the first year of sorting out the details, settle into a workable arrangement. According to Department of Justice statistics, only 3.8% of all custody and access cases are resolved through the courts.
• There is no support for fathers’ rights contentions that custodial parents regularly deny access to the other parent. Accordingly to family law lawyers, a much more pervasive problem is the access parent failing to show up for a visit.
• Women and women’s groups have been saying all along that positive relationships between both parents and children are desirable. However, children’s safety and well-being cannot be compromised in the name of “fathers’ rights”. Contrary to Ann Cools’ recent statements, fathers are responsible for most of the physical and sexual assaults against children. In 1996, fathers were responsible for 73% of the physical assaults and 98% of the sexual assaults against children. (Statistics Canada)
• The committee and media talk about the “false abuse allegations” by custodial parents as if they are a major problem. In fact, statistics show that they are only raised in 2% of divorce cases and are found to be true 92% of the time.(Penfold, “Questionable Beliefs About Child Sexual Abuse Allegations During Custody Disputes,” Canadian Journal of Family Law, 14(1), 1997)
SOME CONCERNS ABOUT THE CORE PRINCPLES DEVELOPED BY THE COMMITTEE
Principle # 1:
Children and parents need and have a right to a close and continuous relationship with one another. This sounds innocuous enough, but what if the father is abusive? Should he have a “right” to a close and continuous relationship with his children? NAWL believes that the best interests of the children have to be paramount and that custody issues should be governed by a presumption in favour of the primary caregiver, that is, that courts should look to who has done the care-giving in fact, rather than who is promising to do care-giving in the future. Additionally, there should be a presumption that abuse, whether it is physical, emotional or sexual abuse by one parent or the other, is not in the best interests of the child.
Principle # 2:
Children, grandparents and other extended family members need and have a right to a continuing relationship with one another. NAWL believes that positive relationships with extended family are desirable and beneficial but why should grandparents have more rights to their grandchildren after the divorce of their children than they had before the divorce?
Principle # 3:
Children and parents need and have a right to swift and decisive protection from violence and from false accusations of violence.The inclusion of “false accusations of violence” in this paragraph gives the false impression that such accusations constitute a serious problem on the same scale as the violence itself. Accusations of sexual abuse of children are made in 2% of contested divorces and only 8% of those prove to be false.(Susan Penfold, Canadian Journal of Family Law, 14(1), 1997.
Principle # 6:
Children’s interests upon family dissolution should be determined jointly by their parents. This sound desirable, but many separated parents are not suited to a high level of continuing contact and shared decision-making. As well, this level of joint decision-making could be at odds with the style of decision-making when the family was intact. In most cases, decision making responsibility falls naturally to the parent who assumes the bulk of the care-giving of the child.
Children have a need to have their future and their families’ future determined in the least adversarial manner possible. This is something everyone wants to avoid. However, if the intent is to advocate for the use of mediation or other alternative dispute mechanisms, there are some serious concerns. Mediation is only likely to work when the parties have equal bargaining power. This is rare in most cases and is particularly rare in family law disputes. Mediation is never appropriate where there has been abuse or violence.