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Custody chances – how it used to be

June 13, 2014

This is taken from a French organisation that  does not support shared parenting (i.e. alternating residence), and is dated circa 2009. Nevertheless, its contains some interesting facts and figures concerning custody awards of that era and the reasons given for disliking shared parenting.

Published by ‘L’enfant d’abord’ (‘The Child Comes First’) this is a group based in Grenoble, France,  and run by Jacqueline Phélip.  She has worked closely with Maurice Berger, well-known for his opposition to shared parenting. Jacqueline Phélip also produced the now almost infamous, “Black book on shared parenting”(this book is now 20 years old).

“Alternating residence or alternating custody 2002 – 2009″

http://www.lenfantdabord.org/wp-content/uploads/2011/01/dossier_garde_alternee.pdf

The translated text will be shown in grey boxes and slightly indented with the various comments and observations in clear text and not indented.

 

INTRODUCTION

The French law of March 2002 granting ‘parental authority’ authorises family court judges the power to impose an alternating residence (also called shared parenting or ‘guard alternée’) on children of couples who separate.

However, the Act contains no safeguard, no single criterion that could help judges to make the best decisions for children, namely, age of the child; any parental conflict; taking account of the primary care-giver during the marriage, domestic violence etc

At the same time, the number of parental separations with children younger, while babies often, even during pregnancy, continues to grow. According to figures from the Ministry of Justice, the alternating residence concerned 11% of couples separated in 2005.

75% of alternating residences awards are made for children aged less than 10 years old (see below).

Alternating residence is practiced in 70% of cases on a weekly basis. The average age of the children is 7 years.

The age of children concerned.

0.1 year :                      2. %

1 year :                         4.2 %

2 years :                       6.7 %

3 years :                       10.4 %

4 years :                       11. %

5 years :                       11.8 %

6 years :                       12.1 %

7 years :                       13.4 %

These figures, however, do not take into account other patterns of alternating residence, which while not being strictly egalitarian still manage to completely fragment children’s lives.

Many children from inappropriate homes who are subjected to alternating residence suffer significant levels of psychological distress, the consequences of which will only appear in adolescence or later in adult years.

 

NB. In the UK a level of 11%  or 13% (see above), for alternating residence and shared parenting is unheard of and would mark a significant departure from the present tiny levels for shared residence.

Practices found other Countries

In all countries, equal or alternating residence plays as very minor role.

A number of Western countries have adopted laws that promote joint custody after parental separation, but almost all rejected the presumption of a systematic alternating residence and ‘a fortiori’ the time-sharing of the child into two equal parts.

NB. The meaning of  ‘a fortiori’  is “by even greater force of logic” or “all the more so because.” But this is to completely misunderstand ‘shared parenting’ or alternating residence which, in practice, will rarely ever be 50/50 due to work commitments of each parent. So that objection can be ignored as spurious – RW.

It is necessary to define some terms in order to clarify the situation:
• In Anglo-Saxon countries, “joint custody” or “joint legal custody” means joint parental authority
• “joint physical custody” means the time spent by the child in each of its parents

NB. This interpretation is not true either; “Joint custody” or “joint legal custody” are terminologies found in North America and in particular the USA. It is not used in England

California

California was the first state in 1979 to adopt a “presumption” of custody joint physical” which was often equal or almost equal.
But very soon, in the face of the multiple failures and harm the State subsequently amended its law (in 1994) to allow only the “joint physical custody” only if both parents have jointly requested it and if the interests of the child are preserved.

NB. It has to be stated that in 1974 any US father who sought shared, or joint, custody of his child would be told by the judge that it was “preposterous”, judges simply didn’t have the authority to do that. This happened to James Cook, from Los Angeles, and it took him until 1979 to alter the state’s law and a further 28 years until eventually 40 states followed suit. Together with US attorney Renee Sperling, James Cook met with the appropriate UK Government Dept in Oct 2002 but nothing has ever changed (James Cook died in Feb 2009).

According to the “American Bar Association”, other states such as Connecticut, Maine, Michigan, Mississippi, Nevada, Vermont and Washington have also passed laws in favour of joint custody, but only if both parents agree. Some states have not allowed such joint custody.

NB. See James Cook and the Joint Custody Association above.

In recent years, the term “shared physical custody” mainly describes a parenting plan by which parents agree on the time the child will spend with each parent.

NB. Shared parenting or ‘shared physical custody’ does depend on a written, binding agreement between parents to avoid misunderstandings and drift or ‘slippage’ over time. It is there to prevent manipulation and rancour from affecting the child’s well being.

But whether by parental agreement or by court order, the effective sharing 50-50 of the child’s time is not the standard, norm, or most frequently adopted parenting plan – either by the parents or the courts (see Bartholomew & Wasznicky LLP, 2008).

NB. Yes, that is true because it is impracticable (see note above ‘work commitments’), and demonstrates the constant corrupting of what it is fathers world-wide are pushing for.

Denmark – Germany – Austria
For unmarried couples who separate the mother gets custody of the children unless parental consent (see “parental authority in question”-Défossez Dekeuwer F., C. Choain 2004).

NB.  But what about formerly married fathers ? On the continent (the EU), unmarried couples represent a far larger proportion of couples than in the UK (at 11%) or US (2%). [1] Since 2004 the situation has changed for unmarried fathers in Germany & Austria (Denmark ?), but not for formerly married fathers.

Canada
According to psychology professor Francine Cyr, “shared physical custody” accounts for 13% of custody awards and only 2% are egalitarian homes (cf. Forum University of Montreal). Children under 5 years are usually left primarily in the care of their mother.

According to psychology professor Francine Cyr, “joint physical [shared] custody” represents 13% of the cases, and only 2% are egalitarian residences, i.e. a 50/50 split (see Forum Université de Montréal). Children less than 5 years are usually left primarily to the custody of their mother.

NB. The ‘tender years’ doctrine seems to be in force and applied here, i.e. under 5 year olds. This is ‘old school’ thinking. Indeed, in May 2014 Canada’s parliament once again voted down a shared parenting Bill, C-560. Note too, that despite Lord Falconer’s outburst in 2004 that a). that fathers’ groups wanted that, and b). that a 50/50 split of children’s time was an “impossibility”, it doers occur, albeit in small numbers.

The Past of a Child is also its Present
Although fathers of today are more involved with their children than in yesteryear, sociological and statistical studies are relentless: when living as man and wife it is mothers who by far assume the physical and mental care for children

NB. This is where issues begin to fall apart for Jacqueline Phélip and her followers. Dr Linda Nielsen (2013), makes the following observations; since most married mothers do 80% of the childcare is it fair on mothers that this should increase to 90% or even 100% after a divorce ?

Worse follows; several other facts have to be kept in mind. First, most married couples are sharing the parenting time more equally, with employed fathers spend roughly 60 minutes on weekdays with the children while employed mothers spend 90 minutes. Pro rata, this would be the equivalent after divorce of 120 overnights with a father after divorce.

How is that still possible, bearing in mind the “implacable” sociological and statistical studies showing mothers shouldering the burden, when both parents, because of the gender wage equalisation, have to go out to work to achieve a minimum standard of living – the ‘family wage’ and the ‘living wage’ having effectively been abolished ?

Using aspects from Nielsen (2014), these “implacable sociological studies and statistics” simply crumble in the face of, for instance, the Wisconsin studies (1,200 families) and an Australian study of 7,118 separated parents (see Melli & Brown, 2008, and Kaspiew et al., 2009, respectively), plus others.

And how can it the burden on mothers be so “massive” when fathers awarded 25% to 50% of shared parenting cope very well with day-to-day chores and care of children of all ages (see (Maccoby & Mnookin, 1992) ?

The ‘Stanford Custody Project’ followed children from 1,100 divorced families over a 4-year period in a random, representative sample of parents who had divorced in California in 1984. What made this study unique for its time was that 150 of these couples had a shared parenting plan where the children lived at least 35% time with their fathers: 25 were infants, 20 were 2-year-olds, 80 were 3- to 5-year-olds, 38 were 5- to 7-year-olds, and 163 were 8- to 16-year-olds.

Could it be that the research and opinions of Jacqueline Phélip and her followers have been left far behind ?

 

The Tabarot Report of July 2008 notes on ‘the  childhood needs of a home‘ that:

“The fact that more and more women go out to work has not led to a new division of responsibilities within couples with regard to the custody, care and education of children: it is overwhelmingly women who continue to shoulder the bulk of the responsibility.  French women still provide the bulk of housework and the education of children. French fathers participate three times less than mothers to care for the children and twice less than Swedish or Norwegian fathers.”

A study by DREES (Directorate of Research, Studies and Evaluation of Statistics), published in April 2007, also states that, ” . . .. it is almost always mothers who dress children, do their homework, stay at home when a child is sick, and take them and pick them up on their home place.

A study CEREQ (Centre for Study and Research on Qualifications) dated May 2007 confirms that “work-family balance is still based primarily on mothers.’

A study of the INED (National Institute of Demographic Studies) in September 2006, notes that:

      “Change in status, hours, intensity of work or withdrawal from the labour market”: nearly 40% of women change their work in the twelve months after birth, whereas only 6% of fathers change their employment/work or schedules.

These statements are confirmed by the fact professors of sociology Sylvie Cadolle (University Paris-Sorbonne), [1] and Canadian, Denyse Côté (Université du Québec), [2] who both specialise in “custody” matters.  With regards fathers’ groups seeking mandatory ‘alternate residence’, they responds (see “Gazette des Femmes”, Vol. 23).

“There are what they consider unfair presumptions of maternal custody within the legal system. It is true that the legal custody awards the majority of children to mothers. But this is not unfair and has nothing to do with ‘injustice’ since women occupy more of their time with children, before and after separation. It is in fact, a recognition by the legal system of a well documented fact. What would be unfair, would be to hide all this ‘invisible’ work.”

These observations are common in all Western countries including Sweden, was is always considered the model country for equal parenting.

Contrary to what groups of fathers say, there is therefore no injustice; no judicial ‘sexism’ that court orders can take into account, in the sole interest of the child, one of who was the child’s s primary source of care when the parents were living together.

Both parents are essential to building a child.

But this “both” if interpreted as a mathematical equality would require the presence of each parent with the child for the same amount of time. Father and mother are not interchangeable but complementary spheres of operation never being linked to an equal presence of each of them with the child whatsoever during the marriage or after.

 

NB. This is not what shared parenting is all about (it is not a a mathematical equation), and is another instance of willful corruption of the message and meaning by those opposed to it. Even the stricter ‘equal parenting’ or alternating residence formula is not that rigidly mathematical.

 

Other contributors and / or citations:-

Professor Catherine Jousselme  (page 12)

Professor of child psychiatry and adolescent in Paris-Sud, attached to the UNIT, INSERM U 669 and Department Head of the Valley Foundation in Gentilly. In “They are shaped as they grow up” R. Laffont, 2008:

“In addition, the flexibility seems quite essential in the establishment and continuation of such care, flexibility must take into account the needs of the child depending on their age and life events.

If the guard stiffens within the meaning of mathematical division of time which must be equivalent things go wrong quickly, neatly highlighting the conflict of loyalties in which the child is already more or less confined.

I also met children who develop operations handicapping in their social relations and in their learning as they urged the movement and have always a metro advance.”

 

 

E N D

[1] “Sharing between fathers and mothers for alternating residence of children and recomposition of gender roles”, 2011.

[2] “Rethinking the family, renewing practices, adapting policies,” New social practices, vol. 24.2. Quebec: Presses de l” Université du Québec, 2012.

 

[1] 2% US, what source ?

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