Shared parenting presumption way to go
The Ministry of Justice is carrying out a review of the 2014 family law reforms. Its Family Court Rewrite calls for an independent panel to examine those reforms and “consider how they have impacted separating families and their children”. The report is to be delivered in May.
The Family Court hears roughly 61,000 cases annually, the majority of which are child custody matters. At the end of May last year there was a backlog of some 8000 Care of Children Act cases waiting to be heard.
The review presents an opportunity to enact positive legislative change. One way to both help children and reduce the burden on the Family Court is to amend the Care of Children Act 2004 to provide for the rebuttable presumption of equallyshared parenting following the parents’ separation.
The potential benefit of making this change to family law is that not only are children’s relationships with both parents better preserved, but also it may cause warring parents to consider their actions vis a vis their children as well as their decision to litigate. Parents remain able to negotiate their own parenting schedule without the Family Court’s intervention.
In the event that one parent seeks to reduce the parenting time of the other parent for any reason, the existing laws and procedures remain. There is no change in the ability of a parent to obtain a protection order or other remedy. The burden of proof is on the applicant parent to demonstrate the respondent parent should have other than 50 per cent shared parenting.
Further, it is estimated that 10-20 per cent of parenting dispute cases involve children who are suffering emotional abuse in the form of parental alienation.
Parental alienation occurs when a child has a fear or hatred of one parent which is far disproportionate to the facts. This view has been taught to the child by the other parent. It is the act of extending separation conflict without consideration of the effects upon the children.
It is accepted by courts and mental health professionals that parental alienation is the emotional abuse of a child. Psychologists believe the long-term consequences for children can include depression, low self-esteem and an inability to trust. There is also risk of alcohol and drug problems. Indeed, this pattern of dysfunctional parenting potentially becomes intergenerational.
Not surprisingly, cases involving parental alienation — those cases in which children are in most need of help — are among the heaviest users of Family Court resources.
A rebuttable presumption of shared care attempts to shield the children from being emotionally abused by a parent and reduce the systemic delay.
Emotional abuse is defined as child abuse in the Children’s and Young Person’s Well-being Act 1989.
However, in New Zealand emotional abuse of a child is not a criminal act, unlike physical or sexual abuse.
Mental health practitioners accept parental alienation to be a form of child abuse that needs a remedy. Statute law has yet to catch up.
A rebuttable presumption of equallyshared parenting is not a revolutionary proposal. At the end of 2017, approximately half the states in the United States had bills in various stages proposing the measure. Kentucky passed such a law in April last year. The nature of family law in child custody matters is unlike any other area of law. The jurisprudence is that of “the best interests and welfare” of children. Every case is treated as unique and case law carries little weight. Thus, litigation is not discouraged because the resolution remains open.
Common counter-arguments to this proposition can be addressed. Exceptions to the proposal may include agency intervention for incidents of child abuse.
The proposed change is meant to help the thousands of children annually in New Zealand whose parents are unable agree a shared parenting schedule.
Healthcare professionals believe that the propensity to alienate a child is equal between men and women.
New Zealand has a chance to make meaningful changes to the law to help children and, if done right, it may be the model which other countries emulate and helps kids worldwide.