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What changes should be made to family law?

These proposals let family law lawyers discuss and vote on what changes they think should be made to the law or court procedures. The results can be viewed and shared with legislators and the Courts. The proposals put forth are written by member lawyers, and do not necessarily reflect the views of this website or its administrators. You can view more proposals or make a proposal yourself.


Proposal: Add legislative criteria to consider when determining whether to implement shared parenting
Parenting (lawyers only) - Aug 15th

73% in favour out of 11 votes

Ken Proudman - view Arbitrator profile
BARR LLP (Alberta. Joined 2017)

We know that children generally benefit from having two very involved parents, and we know that there are scenarios where shared parenting would be dysfunctional. Courts can also be somewhat inconsistent, which likely leads to more litigation, to the detriment of children. Why not codify factors, while still leaving some discretion for unusual circumstances?

Here's an example of what that could look like:
Shared parenting shall be ordered except where:
a) Logistical hurdles such as distance, bussing, or employment schedules would make shared parenting impractical, would leave young children unattended, or would result in grossly excessive travel time for the children;
b) A parent lacks adequate accommodations for the child;
c) A parent lacks necessary skills, training, or equipment to attend to the needs of a disabled or special needs child;
d) The parents are in substantial conflict with each other, before trial or where there is also a significant disagreement on the evidence, and before parallel parenting can be properly instituted, except when the conflict is primarily the result of the unreasonable conduct of the parent seeking the majority of parenting time;
e) A parent poses a serious risk of physical, psychological, or developmental harm to a child because of their past conduct towards a child, demonstrated lack of basic parental knowledge, inability or unwillingness to follow the recommendations of a psychologist or teacher, violence, substance abuse, neglect, absence, or a mature child's resistance towards time with that parent;
f) A mature child's strong and justifiable preference to reside primarily with one parent;
g) Shared parenting for one child would result in prolonged absences from a sibling to which they have a strong connection;
h) A parent's housing or employment instability makes shared parenting an unlikely long-term arrangement;
i) A parent desires that their own parenting time be less than equal; or
j) Exceptional circumstances mean that shared parenting would not be in the best interests of the child.

Feel free to add others in the comments.


0 35 days ago - edited 35 days ago

Anonymous
(Alberta. Joined 2018)

I think the problem is that the science is still out. Where is the study that shows definitively "shared parenting is still in the child's best interest notwithstanding X level of disfunction"

Until that definitive study exists, codification can create some serious issues, and perhaps more serious issues than prolonged litigation.


0 34 days ago

Anonymous
(Alberta. Joined 2019)

Has anyone read the original research? I mean the peer-reviewed, published academic papers.

Does anyone know where they were published?

I would very much like to find and read them.


0 34 days ago

Ken Proudman - view Arbitrator profile
BARR LLP (Alberta. Joined 2017)

Taylor & Francis Online, tandfonline.com, hosts the Journal of Divorce & Remarriage. Here are the meta-analyses from my notes (there may be more):

Nielsen 2018 meta-analysis: https://www.tandfonline.com/doi/full/10.1080/15379418.2017.1422414

Baude, Pearson, & Drapeau 2016 meta-analysis: https://www.tandfonline.com/doi/full/10.1080/10502556.2016.1185203

There's also an article summarizing a discussion by 12 experts here, which refers to other research and discusses theories of what leads to the advantages: https://www.tandfonline.com/doi/full/10.1080/10502556.2018.1454195

There's Bauserman's 2012 meta-analysis as well, although it was primarily about the benefits of joint legal custody and joint physical custody (shared parenting) over sole custody: https://www.tandfonline.com/doi/full/10.1080/10502556.2012.682901

There was a question about whether shared parenting caused the better outcome, or if more well-adjusted and cooperative parents simply gravitated towards shared parenting. Braver and Votruba's 2018 meta-analysis addressed that, and found: "The weight of the recent evidence indicates that self-selection effects do not largely account for the benefits of JPC in the empirical literature. Over a wide variety of methodological approaches and for the vast majority of findings to date, it appears that the benefits of JPC for children are not primarily due to the fact that a unique set of families choose it. Thus, evidence from recent research is discrediting the major rival explanation—that the better child outcomes observed in JPC are merely the result of self-selection. Infirming the primary alternative explanation has the compensatory effect of supporting the original causal proposition (Cook & Campbell, 1979). Thus, we conclude that JPC probably does cause benefits to children on average. It should go without saying that the final two words in the preceding sentence are absolutely necessary. Although the general tendency across all individuals merits this conclusion, it certainly might not apply to all individual child custody cases. However, whether we currently have the requisite expertise to permit inferences about the likely impact in any particular case is debatable (Emery, Otto, & O’Donahue, 2005; Kelly & Ramsey, 2009; Stevenson, Braver, Ellman, & Votruba, 2012). “Bottom line: much as it may be desirable, we may really not know how to properly individualize, tailor, or custom-fit parenting plans to achieve the best possible outcomes in each case. If this is true, the effort and expense and time and trouble taken in the futile pursuit of case-specific fittings come with little in the way of corresponding benefits. And, in such a case, it is better to have a rule or starting place that covers the majority of cases and families, with, of course, the ability to deviate when the fit is obviously bad” (Braver, 2014, p. 177)." https://www.tandfonline.com/doi/full/10.1080/10502556.2018.1454203

I know there was an AFCC presenter, Milfred Dale, PhD who performed his own meta analysis that found the positive effect of shared parenting over primary care to be very slight, although I can't find a peer-reviewed paper by him, just AFCC presentations.


0 34 days ago - edited 34 days ago

Anonymous
(Alberta. Joined 2019)

Thanks very much. Would you be able to share Milfred Dale's AFCC presentation?

0 33 days ago

Ken Proudman - view Arbitrator profile
BARR LLP (Alberta. Joined 2017)

0 33 days ago

David Miksha
Wells Family Law (Alberta. Joined 2018)

Other than a presumption, I do not see such an amendment as contributing anything beyond the codified BIOC factors; although, some of the hypothetical factors mentioned in the proposal might be good to add to the BIOC factors, i.e. logistics and schedule, which seems to be implied in "the child’s physical, psychological and emotional needs, including the child’s need for stability" but is not so clear. A presumption of shared parenting even seems to implicitly arise out of "the nature, strength and stability of the relationship".

0 31 days ago

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