Scientific Basis for Rebuttable Presumption of Shared Parenting
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
THE PRIMARY CARETAKER THEORY:
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.
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[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.
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[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.