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Scientific Basis for Rebuttable Presumption of Shared Parenting

Filed under: Child Support,Gender Politics,General,Law & Courts — MurrayBacon @ 2:16 pm Sat 12th May 2012

Developments in behavioural research in the last 40 years should have long ago swept away the old ignorant prejudices, that substitute for valuable decision making in familycaught$.

The familycaught$ is largely backward looking, in attempting to decide cases by fitting them to preceding cases, rather than deciding cases according to the facts of the case and in accordance to our legislation (which requires that the interests of the children should be protected).
The Primary Caretaker Theory
By Ronald K. Henry
Backsliding To The “Tender Years” Doctrine
Although the “tender years” doctrine of maternal preference has been widely repudiated by statute and case law, old prejudices die slowly. The Gender Bias Commissions of each state in which a report has been presented have acknowledged that bias continues to taint custody decisions. As overt bias becomes increasingly unacceptable, we must guard against reformulations that merely pour old beer into new bottles.

Origins and Purpose of the “Primary Caretaker” Theory In J.B. v. A.B., 242 S.E.2d 248 (W. Va. 1978), Justice Richard Neely freely acknowledged the maternal preference bias of his Court in the following terms:
We reject this [father’s] argument as it violates our rule that a mother is the natural custodian of children of tender years.

* * *

[The Court] rejects any rule which makes the award of custody dependent upon relative degrees of parental competence rather than the simple issue of whether the mother is unfit.

* * *

[B]ehavioral science is yet so inexact that we are clearly justified in resolving certain custody questions on the basis of the prevailing cultural attitudes which give preference to the mother as custodian of young children. Id. at 251-52, 255 (emphasis added).
Back in 1978, behavioural research in parenting was at an early stage. Since then, it has made tentative strides forward and now there is a lot of research on the impact onto children’s development and mental health, of their parent’s mental health.

If we look at a marital separation scenario or parents who were never together scenario, the largest issue to be decided is often “how much care should each parent give to the children?”

Rather than assume care by gender, we can now look at the quality of care and development each parent can offer the child(ren)?

In many cases, both parents have significant social deficits, gaps in parenting skills and perhaps low level mental illness issues too.

In a moderate number of cases, the mother’s problems may be more hazardous for the child than the father’s. Depression is particularly hazardous, for babies when they are left alone with their caregiver. In these cases, if the parents will not agree to live together and support each other, then probably the baby should be removed straight away?

These types of issues are generally less dangerous as the children get older, but can still be problematic in the mental health development of the children.

If the parents can agree to work together, then they have a much better chance of safely taking care of the child. Research shows that children are much less affected by parental mental illness, if both parents are present.

If they want to be separate, then maybe the child should be cared for mainly by the father?

I am suggesting that mentally healthy couples separating could share care anywhere between 20%/80% to 80%/20%, without too much detriment for the child. However, good mental health isn’t so common among poor welfare parents and separating couples, thus a more equal sharing of care is necessary, for the children’s mental health development to be protected.

Less skilled or mentally healthy parents might be limited to 40%/60% to 60%/40%.

Say, if the mother was clearly less skilled, then the care arrangement might be restricted to 20%/80% to 30%/70% with the child mainly with the father. Many women who wanted to separate, if they were warned that the outcome would be 20 to 30% care max and paying child support to boot, they might just be more willing to compromise and live together…

Either way, competently considering child protection, before allowing removal of the children from the marital home, would protect children’s development more effectively. This would also result in huge later reductions in criminal injuries, sickness benefit costs and prison costs.

The research to backup this approach is not yet proven to be conclusive.

In my opinion, it seems to support the decision approach that I have suggested above, but I have a long way to go to pull the details together confidently.

By way of comparison, the present child support system makes very negative assumptions about men’s parenting skills. These assumptions are completely incorrect, in at least say 40% of cases. Then it incentivises mothers to restrict father’s access to the children, thus limiting the development of parenting skills in the father. It also builds up resentment and disincentivises the father to be available for the children. This toxic mess shows up in child neglect statistics and also in criminal behaviour and suicide statistics.

I believe that parents should be given advice about their parenting skills and the limits to be set within which they can negotiate their separated care arrangements. This protects the children from hazardous mothers and fathers from the outset, not just when major pervasive problems show up. It also protects both parents development of parenting skills and gives them more constructive incentives to work together for their children.

Even if parents want to separate, our legislation (for what it is worth) requires that parents share significant decisions. This obligation is scuttled by most familycaught$ “judges”, at serious cost to the welfare of the children.

We need to fully look into the social effects of child support, onto the quality of parenting that children receive. (Part of this analysis would include the fact that extra children are born, that otherwise would not have been born at all… In many cases, these are the very children who receive the very worst quality of parenting.)

I suggest that accountability between parents is largely destroyed by CSAct. This is a large factor, in the reduction of quality of parenting that children receive.

The other major factor, for the children, is the loss of contact with the father.

Of course the darkest part of quality of upbringing, is child neglect and abuse. This shows up horribly in statistics for young solo mothers, particularly those never in a supportive relationship. Many of these have significant social and personality problems. Coupled with poor income
earning capability, the mix is dangerous for babies and young children. Also financially dangerous for whoever is picking up all of the tabs…..

These types of issues are also important for still married couples. When the children see both parents frequently during the week, then there is a higher ability for the children to tolerate mental illness in one or both parents. If for example the mother had a moderate degree of mental illness, even below formal diagnosis level for depression in particular, then for the children’s mental health to be protected, the father should be spending much more time with the children. This might even lead to pressure for the mother to go to work and the father perhaps work part time or not at all. (Incidentally, work is usually helpful to mental health, so it isn’t all negative.) These considerations should lead young men to seek wives who have reasonably good career prospects…… Maybe the pressures between the sexes are equalising a bit?

This approach based on considering child protection issues when making decisions on the care of children strongly supports a rebuttable presumption of equal shared care.

Sanford L. Braver has surveyed USA public attitudes about shared care after divorce and found general acceptance.
He has suggested that the USA familycaught is far behind public attitudes.
Many USA states now have legislation supporting a rebuttable presumption for shared parenting, although getting legislation to work in familycaught$ may still be a problem. Many continental european states have working shared parenting.

The considerations above also suggest that fathers should understand the importance to their young children of spending significant amounts of time with them. For this reason, fathers should be encouraged to take up after birth parental leave, even if there is a financial cost to the family.

Best regards,
Murray Bacon.


  1. Not sure what point you are trying to make here Murray.
    You mentioned scientific facts but then mentioned the family court. I don’t see the connection.
    Now, had you mentioned witchcraft or old wifes tales or ‘he made me do it’ and the family court, it would make more sense……

    Comment by JS — Sun 13th May 2012 @ 2:22 pm

  2. Research on child protection and child development appears to support, at time of separation:

    * shared parenting, for parents with less than average levels of mental illness,
    * fairly equal shared parenting, for parents with moderate low level mental illness,
    * removal of the child(ren) for parents with poor mental health (unless they will work with outside supports).

    Separated (or solo) parenting requires a higher level of parenting skills than together parenting. If the parents don’t have this higher level of parenting skill, then on separation they relinquish the right to care for their children.

    Babies and young children should not be continuously in the care of a parent with impaired mental health, for more than about 2 1/2 days, especially if the impairment is depression.

    If one of the parents is more impaired, then that parent should have the lesser extent of care.

    Curious how the familycaught$ tries to enforce that fathers “are not allowed to comment on the mother’s skills or parenting ability”. By using a blind eye, the familycaught$ is refusing to protect children from mothers who may endanger or damage the children.

    Although the research presents a somewhat confused picture, I believe that the conclusions above are now starting to be clearly supported. I am continuing my reading, to see if this conclusion is or is not rock solid? Cheers, MurrayBacon.

    Comment by MurrayBacon — Sun 13th May 2012 @ 7:33 pm

  3. #2..anything said against the mother whether its true or not is deemed abuse

    Comment by Ford — Sun 13th May 2012 @ 7:42 pm

  4. Dear Ford, to protect the children, it is necessary to listen to both parents and other witnesses of how the children are cared for. To refuse to listen to both parents, is to refuse to protect children. Parliament agrees to pay familycaught$ a benefit, for protecting children and vulnerable adults.

    If familycaught$ doesn’t want to be associated with checking on parent’s mental health, you shall have to do it yourself!

    The above articles are fairly good. But for protecting children, you really need a bit more information on the impacts of these personality disorders onto on parenting skills. For the time being, these articles are a good start to doing your diagnoses….

    You can probably do it better than familycaught$ anyway, even if it was trying to do the job!
    Give it a try and see what happens, especially if you want to protect your children!
    You are probably more worried about protecting your children, than a “judge” who is paid a benefit whether they succeed or fail. MurrayBacon.

    Comment by MurrayBacon — Sun 13th May 2012 @ 8:33 pm

  5. if people had ever investigated my x mental history she would never have been allowed to have kids full stop

    Comment by Ford — Mon 14th May 2012 @ 8:30 am

  6. Reply to MurrayBacon#4

    Interesting post you have written MurrayBacon…But whats even more disturbing is the increasing rate of mental illness both in young teenagers and mature adults occurring western European society

    Kind regards John Dutchie…Free at long last

    Comment by John Dutchie — Tue 15th May 2012 @ 4:57 pm

  7. Dear John, we are better at diagnosing these problems and the available psychotherapies and drug treatments are much better too. As you have pointed out, there is much better and more information available to the public. I would guess that generally people’s mental health is better today than say 50 years ago, for these reasons.

    People are more tolerating and accepting of mental illness. I for example have admitted my chronic impulse control and anger problems and hope that by admitting the less serious conditions, I might be able to keep the more serious, embarrassing and debilitating problems secret?

    Some people expect too much from life and depress themselves as a result. If we can have realistic expectations, then we can be more easily pleased…. I think that message is several thousand years old and more true today, than ever before.

    In terms of parenting, as we understand child abuse better, the impact of poor parental mental health is becoming more researched and better understood. To protect children from neglect and abuse, we need to help parents to improve their parenting skills and mental health. When these problems are severe, especially if the parent will not accept help, then it may be necessary to remove the children from that parent or even from both parents.

    When parents separate, where they are able to work constructively together, then the parenting given to the children usually doesn’t suffer much. When parents refuse to work together, then usually one or both has at least low level mental illness. Maybe not bad enough to attract a formal diagnosis, but enough to cause problems for the children. From what I have seen, the familycaught$ seems to add to these problems, rather than be part of the solution. Maybe we are incentivising them to treat us like that?

    The solutions aren’t complex and we just have to decide that we want to live better.

    Cheers, MurrayBacon.

    Comment by MurrayBacon — Tue 15th May 2012 @ 8:46 pm

  8. Co-Parenting After Divorce, Rising to the challenge. by Edward Kruk, Ph.D.
    Parenting and High Conflict
    Separating Former Marital Disputes from Ongoing Parenting Responsibilities
    Published on May 15, 2012 by Edward Kruk, Ph.D. in Co-Parenting After Divorce
    It is often assumed, by legal and mental health professionals alike, that when divorcing parents are unable to come to an agreement in regard to parenting arrangements for their children, and remain locked in high conflict, shared parenting is contraindicated. The belief is that children will remain caught in the middle of their parents’ conflict, and exposure to ongoing conflict is extremely damaging to children’s well-being. In many jurisdictions, there is a legal presumption against shared parenting in high conflict cases. As a result, parents who seek a sole custody arrangement or wish to retain primary caregiving responsibility for their children after divorce often characterize their cases as high conflict. Parents may exaggerate the extent of conflict, or purposefully engage in conflict to resist a court order for shared parenting.

    There is no debate that continued, ongoing, unresolved high conflict is harmful to children of divorce. What remains under dispute among legal and mental health practitioners and policymakers is the type of parenting arrangement that is best for children in high conflict situations, and the amount of time children should spend with each of their parents in such cases.

    For many years the research supported the position that shared parenting in situations of high conflict was harmful to children. More recently, however, this research has been scrutinized and found wanting, and a different viewpoint has emerged. Previous research examined the frequency of alternating contact, and found negative outcomes for children in situations of high conflict and a high frequency of alternations between mothers’ and fathers’ homes; that is, children were being exposed to their parents’ conflict during frequent transitions between the two households. When the frequency of transitions is reduced, and high conflict parents avoid direct contact with each other during the transitions and shield their children from their conflict, these negative effects disappear.

    More recent research has examined actual parenting time as opposed to frequency of contact (less frequent transitions, but shared or equal parenting time), and has found not only that shared parenting is not harmful in high conflict situations, but shared parenting can ameliorate the harmful effects of high conflict: a warm relationship with both parents is a protective factor for children.

    A consensus seems to have emerged within divorce research on the matter of high conflict and parenting after divorce. In 2002, Robert Bauserman, in his metaanalysis of 33 studies that compared child outcomes in sole custody and shared parenting homes, concluded that the benefits of shared parenting on children’s well-being exist independent of parental conflict. The negative effects of parental conflict are likely the result of the fact that fathers lose contact with their children in high parental conflict situations. In a 2003 article, Marsha Kline Pruett found that the effects of parental conflict on child outcomes are mediated by paternal involvement. In 2007, Fabricius and Luecken concluded, from children’s own perspective, that shared parenting is beneficial for children in both low and high conflict situations. Thus research does not support a presumption that the amount of parenting time should be limited in cases of high conflict. High conflict should not be used to justify restrictions on children’s contact with either of their parents.

    Other research has demonstrated that sole custody is associated with exacerbation or creation of conflict, as fully half of first-time violence occurs after separation, within the context of the adversarial ‘winner-take-all’ sole custody system. Given the high stakes involved, this should come as no surprise, as fear and hostility runs high when parents are threatened by the potential loss of their children. Studies have found that limiting fathers’ involvement in their children’s lives is correlated with their reported level of hostility toward their ex-wives. Interparental conflict increases in sole custody arrangements, and decreases over time in shared parenting arrangements; when neither parent is threatened by the loss of his or her children, conflict goes down.

    Rather than accepting that high conflict is inevitable in divorced families, our goal should be to reduce the conflict. Shared parenting provides an incentive for parental cooperation, negotiation, mediation, and the development of parenting plans. Most parents can successfully learn to minimize conflict when they’re motivated to do so, and shared parenting provides this incentive. A number of specialized interventions to help parents reduce conflict have been developed, including therapeutic family mediation, parent education programs, and parenting coordination. A key strategy is keeping parents focused on their children’s needs, and enhancing parents’ attunement to their children’s needs. The main therapeutic task in high conflict families is to help divorcing parents separate their previous marital hostilities from their ongoing parenting responsibilities. Parents who remain challenged in this regard also have the option of parallel co-parenting. Over time, as the dust settles, parallel parenting may become replaced by a more cooperative co-parenting arrangement.

    Finally, it is important to distinguish among different types of high conflict. Conflict is a normal part of everyday life, and to completely shield children from normal day-to-day conflict may in fact be doing them a disservice, as conflict presents an opportunity for resolution of disputes, healing and reconciliation. Conflict is not inherently bad for children. It is persistent, unresolved conflict that is dangerous for children. And children need to be shielded from violence and abuse. Children of divorce should be afforded the same protections as all other children when there is a finding of abuse. This includes situations in which children are exposed to violence directed toward one of their parents.

    In the majority of high conflict divorces, however, violence and abuse are not a factor. The culture of animosity created by litigation and the adversarial sole custody system, however, seems tailor-made to produce the worst possible outcomes when there are two capable parents who wish to continue as primary caregivers, cannot agree on a parenting plan, and are forced to disparage each other in an effort to simply maintain their role as parents. Children’s safety in the majority of divorces is best assured when both parents are actively and responsibly involved in their lives, and when social institutions support them in the fulfillment of their parental responsibilities.

    Comment by MurrayBacon — Sun 20th May 2012 @ 10:37 am

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