Judge not, lest ye be judged
In family courts across the land, judges hold effectively the same powers over separated parents as feudal lords held over their serfs, and it pleases them to exercise this power without much restraint.
Grant Brown - June 15, 2008
The idealistic denial of parental rights is meant to pave the way for courts to make rulings that are strictly in “the best interests of the child.” This is problematic in all kinds of ways. Taken to its logical conclusion, children should be adopted out to the best available couple from their neo-natal ward, rather than being sent home with their biological parents. You might think that my argument contains a false premise, since in almost all cases the biological parents will in fact be the “best available couple” for any given child. And for reasons of basic human psychology, I am inclined to agree with you. But that is precisely the argument advocates of a legal presumption of equal shared parenting make about custody at the time of separation.
The decisive practical problem with implementing the “best interest of the child” standard is that judges are exceptionally poorly placed to make that call in anything but the most obvious of cases or the most general of ways. Except perhaps in the most expensive and drawn-out of trials, judges have nothing remotely approaching the level of information about and familiarity with a child or his or her familial circumstances that would permit them to take a reasonable stab at determining what is in any unique individual’s best interests. What this means in practice is that M’Lord or M’Lady simply makes a crude delegation of who will make which decisions on behalf of the child. Thus the dispute quickly and inexorably devolves into an adversarial, winner-takes-all battle over who is the “better parent.”
This battle is usually fought, at least in the early stages that are often determinative of the ultimate outcome, on the basis of a 10-minute theatrical performance from two lawyers who are practiced at obfuscating the character flaws of their own client and at smearing the character of their opposite’s client. The information that gets to the judge is thrice filtered: first by the client when advising their lawyer; second by the lawyer when preparing an Affidavit; and third by the judge who retains selectively what is presented in court.
Since nothing of importance can be established in this manner, judges end up relying very heavily for their decisions upon myths, stereotypes, and simplistic rules of thumb. These are given the weighty rubric of “precedents” or “authorities,” which almost always favour the mother. The rules of the game impose a huge burden on fathers to prove that they should be allowed to remain a meaningful part of their child’s development.
The hostile, expensive, drawn-out, winner-takes-all battle over who is the “better parent” that our adversarial legal system promotes is highly detrimental to the child. Children are exposed to seriously elevated tensions between their parents. Parental incomes end up supporting the children of lawyers, judges, psychologists and social workers who are called into the legal battle. And for what? To show that mom or dad is the “better parent” by even the slimmest of margins, and therefore is entitled to “primary care.” It seems to have escaped our learned judges and experienced counsel that this whole exercise is fundamentally misconceived, because what is truly in the best interests of the child is almost always to have both parents remain as heavily involved in their lives as is practically possible.
Paradoxically, the way to promote the best interests of children is to give both of their parents strong presumptive rights to care for them more or less equally in the event of a separation, and to reward the parent who is most cooperative and creative in finding solutions to the practical problems that inevitably arise in shared parenting arrangements.
Dr. Grant Brown earned his Ph.D. in philosophy from Oxford University.
Page 2 of 2
More articles by Grant Brown
- World coming to an end: Women disproportionately affected!
- The lesser interest principle
- Women are always victims, even when they're not
- Grant Brown reflects on American Independence Day
- Exhibit A: Justice Suzanne Tessier
- The curious case of Country C
- Diaper duty revisited
- An unconstitutional entitlement
- The special pleading section of the Charter
- Biology is not destiny