Children of Divorce Need our Protection

Date: 
Sunday, July 27, 2003

Michelle Landsberg, Toronto Star, July 27 2003

When I look at the very good fathers I know — fathers who are emotionally engaged, responsible and loving — I marvel that fatherhood is represented on the national scene and even in legislation by a tiny, shrill minority who are their polar opposites. Good fathers would no more go to war with their ex-partners, inflicting permanent emotional damage on their children, than they would embezzle from their bosses. Alas, the amendments to the Divorce Act which will be put forward in the fall have been dangerously influenced by a very vociferous fringe of fathers' rights activists and their overbearing friends in the Senate and Parliament.

Justice Minister Martin Cauchon will introduce Bill C-22 to eliminate the supposedly enraging "custody and access" language in favour of "parental responsibility." It's so vague. What will happen to the child support guidelines? What about protection for women and children fleeing violence? What about enforcement of court orders?

These ill-defined "parenting plans" will have more people, not fewer, rushing to slug it out in court. That's been the experience in England and Australia, which have similar laws. (John Eekelaar, The Law Quarterly Review '96; Rhoades, Graycar and Harrison, "The Family Law Reform Act 1995, The First Three Years," University of Sydney, 2000).

Yes, you're right, it's weird to see academic-style footnotes in a column. But every time I write about this issue, the fathers' rights vigilantes leap into action, snapping and yelping at the heels of the Star's ombud, demanding proof of every statistic and cooking up stats of their own.

So here it is. Skip the rest of this column if you have no interest in divorce. The fathers' rights activists have shrewdly thrown up a fog of misstatement, false "anecdotes" and outright lies designed to elicit public sympathy. The first whopper: "Every child has a right to two parents" and "Kids need fathers." Clever, that, to disguise father's prerogatives as "children's rights." But there's absolutely no scientific evidence for this statement. A loving father, of course, is a boon to any child. But just any old father? A drunk, a batterer, a tyrant, an infantile male supremacist? A man who stalks his ex-wife through the courts?

I don't think so.

The fathers' rights version of "essential fatherhood" is all about authority, rules, strict discipline and imposed heterosexuality.

Extrapolating from conditions in inner-city U.S. ghettoes, they freely declaim that "fatherlessness" is the cause of everything from delinquency to girls' promiscuity. In fact, sociologists have long documented the fact that a context of poverty and hopelessness leads to more single-parent families, and their ever-deepening poverty is what does the damage. (McLoyd, V.C., Socioeconomic Disadvantages and Child Development, American Psychologist 1998).

Judith Wallerstein, a leading U.S. authority on the impact of divorce on children, concludes from a 25-year study that, "There is no research evidence that either the frequency or amount of contact between noncustodial parent and child is related to good outcome in the child." Lack of conflict, she has written, is far more important. (Family and Conciliation Courts Review, '98)

Unfortunately, it's practically a religion for angry fathers' rightists to insist on mandatory joint custody. Yet all the evidence says that these are precisely the people who, for the sake of the children, must not have it. High-conflict couples with joint or shared custody are the very ones who subject the child to constant warfare. California pioneered the joint custody laws and then had to change them when the evidence of harm began to surface. Children of the angry minority suffered from depression, withdrawal, physical illness and social failure (Janet R. Johnston, Family and Conciliation Courts Review, Oct. '95).

The best custody arrangements for this "special subpopulation," wrote Johnston, is "to allow parents to disengage from each other" — strict separation with clear, specific visitation plans and an absolute minimum of shared decision-making.

Does anyone else sense a car crash about to happen? Under Cauchon's "parenting responsibility" plan, the best-adjusted divorcing couples will do just what they've always done, work out sensible custody arrangements on their own.

Meanwhile, the batterers and control freaks will be thrown into the muddle of parenting plans. Mothers will end up with all the physical care of the children (even in so-called shared custody, the mothers end up doing all the custodial care; N. Marcil-Gratton and C. Le Bourdais, National Longitudinal Survey of Children and Youth, 1999) while the fathers will have unprecedented legal power to meddle in decisions about every aspect of the child's daily life.

Fathers' rightists insist, furiously, that all courts are biased and automatically grant custody to mothers.

In an official report of the Massachusetts Supreme Judicial Court in 1990, the researchers admitted that they began by sharing this perception about court bias in favour of women. They found the opposite to be true. (New England Law Review, Spring, 1990). Most women have physical custody of their children post-divorce — not because of bias, but through mutual parental agreement. When men do actually fight through the courts to get custody, they are awarded sole or joint custody more than 70 per cent of the time.

It has long been the same story in Canada. Back in the '90s, senior Justice Department counsel Glenn Rivard twice confirmed for me that, although official statistics are a mess and cannot accurately reflect all family courts decisions across the country, it was his informed perspective that "when fathers seek custody, they win about 50 per cent of the time."

Maybe fathers are being bamboozled by their own propaganda. Nor is it true, despite the hair-raising stories, that most mothers maliciously impede men's access to their children. Access denial is a serious problem in only 2 to 5 per cent of cases (D. Perry, Calgary, Canadian Research Institute for Law and the Family 1992).

The bigger problem is the erratic or totally absent father who disappoints his children by not using his access rights. More than 40 per cent of parents with access rights see their children rarely or never (Evaluation of the Divorce Act, Department of Justice 1990).

And all those horrific "false allegations" of sexual abuse that supposedly destroyed so many men's lives, and that fathers' rightists were sobbing and screaming about at the notorious Joint Senate House Committee on Custody and Access? Call it junk testimony. Widespread studies show that between 8 and 16 per cent of abuse allegations are false (Prof. Susan Penfold, Canadian Journal of Family Law '97). Bitter custody disputes give rise to these allegations only 2 per cent of the time (Penfold).

Revealingly, 21 per cent of abuse allegations made by fathers are deliberate lies, but only 1.3 per cent of the allegations made by mothers are intentionally false. ( Nicholas Bala, Canadian Family Law Quarterly, '99)

I have tonnes more statistics, but hey, I'm as sick of them as you are. Nevertheless, we can't risk harming children by allowing the government to bow to the unfounded claims made by the vengeful fathers' rights lobby.