April 15, 2002

The great divorce cure not exactly rocket science

By Candis McLean
The Report Newsmagazine

ECMAS (Equitable Child Maintenance and Access Society) has always advocated that the assumption of shared parenting be built into the divorce act. Currently, sole custody is assumed, and any variation must be established in court at great expense to both sides. In a 1997 study on "Child Custody Policies and Divorce Rates," the Children's Rights Council in Washington, D.C., found that states which obtained high levels of joint physical custody awards in 1989 and 1990 showed significantly greater declines in divorce rates in the following five years, compared with other states. Divorce rates declined nearly four times faster in states with high joint physical custody (known in Canada as shared custody), compared with states where shared custody is rare. As a result, the states with high levels of shared custody now have significantly lower divorce rates on average than other states. States that favoured sole custody, on the other hand, also had more divorces involving children.

"These findings indicate that public policies promoting sole custody may be contributing to the high divorce rate," researchers concluded. "High levels of child support associated with sole custody may encourage divorce, because custody of children represents an asset for the custodial parent to the extent that child support payments exceed the cost of raising a child (Muhtaseb, 1995)."

A 1995 National Centre for Health Statistics report gives data on custody awards for 19 participating states for the years 1989 and 1990. "If one investigates the simple question, 'who initiates divorce?"' researchers note, "we find that from 1975 to 1988, in families with children present, wives file for divorce in approximately 2/3 of the cases each year." The reason is simple indeed. If women can anticipate a clear gender bias in the courts regarding custody, they can expect to be the primary residential parent for the children. If they can anticipate enforcement of financial child support by the courts, they can expect a high probability of support monies without the need to account for their expenditures. Clearly they can also anticipate maintaining the marital residence, receiving half of all marital property and gaining total freedom to establish new social relationships.

States that favour sole custody in divorce may thus expect to see more divorce than states that encourage shared custody. On a practical level, shared custody makes it less likely that a parent can move to another city to eliminate interaction with the other parent. Because both parents provide for the child directly, child support payments may be somewhat lower with shared custody, reducing financial motives for divorce. Perhaps most significantly, shared custody also removes the capacity for one spouse to hurt the other by denying participation in raising the children.

"The correlation between shared custody and reduced divorce may have a simple explanation," they conclude. "If a parent considering a divorce is told by an attorney that a judge will probably not permit him or her to relocate with the children, and that the other parent will continue to be involved, he or she may decide that it is easier to work out problems and remain married."

Storms Mr. Fowler, "That is the problem: high collection rates at any cost. And the public is endorsing it through its ignorance. The [federal childsupport] guidelines are high, yet judges are using them as mere starting points and adding costs onto them. MEP is using draconian collection measures, many times against men with second families, so they are having trouble feeding them. If a man suffers a decrease in income, they will pull his driver's licence or garnishee whatever income he has. They do that all the time." In fact, last year between April and December, 18,310 motor vehicle restrictions were placed on Alberta's 46,000 debtors; that is a whopping 40%.

Biases against non-custodial parents must be brought to the attention of the public, Mr. Fowler maintains. "People think child support is automatically recalculated to reflect your present income and the income of the custodial parent, when, in fact, child support orders are never based on ability to pay, or the ex-spouse's household income. Even if the ex's new spouse is earning half a million dollars, this income is still not considered in the support order. It is always a percentage of the non-custodial parent's" wages, plus possible add-ons.

"There is no way to extract cash from hundreds of thousands of households across Canada without creating victims. Dedicated people within the system have seen the casualties and are working toward enforcement that creates fewer victims. How do you do that? We don't want people hanging themselves."

Copyright, 2002 The Report,