Comments on: Canadian Researcher: ‘We must abandon the claim that the (family) court has been acting in children’s best interests’ http://www.bloggernews.net/125218 High-quality English language analysis and editorial writing on the news. Sun, 27 May 2012 17:32:15 +0000 http://wordpress.org/?v=2.3.3 By: rlaspari http://www.bloggernews.net/125218#comment-1749616 rlaspari Sun, 12 Sep 2010 22:16:29 +0000 http://www.bloggernews.net/125218#comment-1749616 As a society we are aware of the devastating impact of divorce on children, yet we seem resigned to do nothing to prevent it. I propose a simple change to existing divorce laws to help. For lack of a better term, we could call the change one from "no-fault" divorce to "no-harm" divorce. If one spouse initiates a divorce where any children of minor age are present, there should be a presumption that custody of the children would go to the respondent in the divorce. Custody would not necessarily go to the respondent – if the respondent did something wrong like abuse the children, custody could go to the divorcer – but there would be the presumption that the respondent is innocent of wrongdoing and should retain custody. We like the presumption of innocence in other areas of law, but it still remains elusive in family court. With this simple change, spouses would not be so quick to initiate divorce. There would be the very real possibility that by initiating the divorce they could lose custody. Children would no longer be effective pawns in a divorce, and spouses would now have more pressure to work out their differences. There would be much less power in the hands of the spouse that wants the easy way out. The freedom to divorce would still be there, but there would be less of a reward for doing so where children are present. This change would not impact situations where the divorce was mutually agreed upon and approached in a truly collaborative fashion, but such situations are generally the minority and not usually the source of bitter custody disputes. In college educated households women initiate divorce 90% of the time. They do it because they know they have a huge advantage in divorce. Changing to a rebuttable presumption that children remain with the respondent would remove that advantage. It would truly be a level playing field where we are looking out for the children. As a society we are aware of the devastating impact of divorce on children, yet we seem resigned to do nothing to prevent it. I propose a simple change to existing divorce laws to help. For lack of a better term, we could call the change one from “no-fault” divorce to “no-harm” divorce. If one spouse initiates a divorce where any children of minor age are present, there should be a presumption that custody of the children would go to the respondent in the divorce. Custody would not necessarily go to the respondent – if the respondent did something wrong like abuse the children, custody could go to the divorcer – but there would be the presumption that the respondent is innocent of wrongdoing and should retain custody. We like the presumption of innocence in other areas of law, but it still remains elusive in family court.

With this simple change, spouses would not be so quick to initiate divorce. There would be the very real possibility that by initiating the divorce they could lose custody. Children would no longer be effective pawns in a divorce, and spouses would now have more pressure to work out their differences. There would be much less power in the hands of the spouse that wants the easy way out. The freedom to divorce would still be there, but there would be less of a reward for doing so where children are present. This change would not impact situations where the divorce was mutually agreed upon and approached in a truly collaborative fashion, but such situations are generally the minority and not usually the source of bitter custody disputes.

In college educated households women initiate divorce 90% of the time. They do it because they know they have a huge advantage in divorce. Changing to a rebuttable presumption that children remain with the respondent would remove that advantage. It would truly be a level playing field where we are looking out for the children.

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