Divorce Reform Can Meet the Best Interest of the Child . . . and Both Parents

by John Hoffman

Something has happened that I thought I’d never live to see. Fathers’ divorce rights activists and their opponents agreed on how to change divorce laws.

This happened in Minnesota. But it is truly revolutionary. If it happened there it could happen in Canada too.

Anyone who pays attention to efforts to reform divorce laws knows what can of worms that can be. Fathers’ groups have argued for years that too many men are cut out of the lives of their children because of a system and attitudes that are biased against fathers.  Their answer is that courts should presume that parenting time should be shared equally between mothers and fathers after divorce.

On the other hand, some women’s groups and legal professionals have fought this idea tooth and nail. They say that, in high conflict cases, shared parenting exposes children to harmful conflict and makes it easier for abusive men to keep harassing their ex-spouses.

Then, of course, there is the whole issue of what’s in a child’s best interests. Father’s groups say what’s best for kids is to have relationships with both of their parents. Others counter that living primarily with one parent is more stable and safe for children.

I’m over simplifying this debate. But I can’t get into all of it. The point is that the conflict between these camps has derailed some attempts to reform divorce laws in Canada. I’ve spoken to people who attended hearings of Canada’s Joint Senate and House of Commons Committee on Custody and Access in 1998. There was hostility, mistrust and even name-calling between opposing groups.  Those hearings proposed some changes, but they never came into law. That’s partly because politicians know that divorce reform is such a political hot potato.

In spite of this conflict, however, some improvements have been made in the way we do divorce. In fact, most divorce agreements and parenting plans are made outside of court.  And many parents agree to share parenting fairly equally. The legal process has changed in ways that help reduce, or at least, not add to, conflict between parents.  But still there was this sticking point about what fathers’ groups call a legal presumption of shared parenting, an idea that seems to scare some women’s groups half to death.

Well, Minnesota found a way to work it out using an approach called Convergent Facilitation. They actually got a diverse group of stakeholders, including some bitter adversaries, to agree on how to reform and improve divorce laws. Some of them wouldn’t even ride in the same elevator together. But they managed to agree on proposals that led to real, productive changes in Minnesota’s divorce laws.  These changes won’t solve all child custody and access problems. Nothing will. But still, these are innovative changes that Canadian provinces can learn from.

One great thing the Minnesotans did was set out some criteria for determining the best interests of the child. And they acknowledged that part of that was a good relationship with both parents whenever possible. Here’s direct quote from one clause of the new law: “The court shall consider that it is in the best interests of the child to promote the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents”  (italics mine).

Even though that’s a statement that almost everyone would agree on, it has been seemingly impossible to get it into a divorce law. And that’s largely because of the history of hostility and mistrust between opposing sides in the divorce debate.

The new law even mentions a presumption of shared parenting. That might make it sound like the fathers’ groups won. Except, they didn’t “win.” It’s just that they and their opponents were able to agree on principles they could all live with. That includes protecting women and children from abusive men, putting the needs of children ahead of the rights of parents and more.

I don’t have room to go into all the law’s details.  I mostly want to spread the word that it is possible to get opponents to agree on helpful changes to divorce laws.

Unfortunately almost nobody I’ve talked to in Canada has heard about these arguably historic changes in Minnesota’s divorce laws,

Well, you’re hearing about it now. If you are interested in divorce reform I urge you to learn more about what they did in Minnesota and how they did it. And spread the word. You can read more about the process here and one lawyer’s opinion of what the changes mean here.

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