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BACK to the BEST INTERESTS of the CHILD 2Nd Edition POLICY MONOGRAPH BACK TO THE BEST INTERESTS OF THE CHILD 2nd Edition TOWARDS A REBUTTABLE PRESUMPTION OF JOINT RESIDENCE Yuri Joakimidis BACK TO THE BEST INTERESTS OF THE CHILD TOWARDS A REBUTTABLE PRESUMPTION OF JOINT RESIDENCE Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well- being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgement and experience. The child does not forfeit these rights when the parents divorce." Presiding Judge Dorothy T. Beasley, Georgia Court of Appeals, "In the Interest of A.R.B., a Child," July 2, 1993 A PAPER COMPILED BY THE JOINT PARENTING ASSOCIATION Table of Contents Executive Summary................................................................................................... 5 Overview.................................................................................................................... 7 The Solomon Parable ................................................................................................ 8 The Hearing............................................................................................................. 8 The Failed Pathway ................................................................................................... 8 The Two Thousand Year Odyssey of Joint Residence.............................................. 8 The Need For Change.............................................................................................. 8 The Need For A Joint Residence Presumption .......................................................... 8 Implementing Joint Residence.................................................................................. 8 Family Law Reform.................................................................................................... 8 United States of America...…………………………………………………………… ……37 Australia The Family Law Reform Act 1995––A Snapshot ........................................................ 8 The Case For Sole Residence ................................................................................. 49 The Case For a Rebuttable Presumption of Joint Residence.............................................. 8 Children’s Adjustment............................................................................................... 8 Adjustment of Parents .............................................................................................. 8 Adjustment of Grandparents ..................................................................................... 8 Joint Residence ....................................................................................................... 8 Other Factors Favouring Joint Residence ................................................................. 8 Summary................................................................................................................. 8 APPENDIX A .......................................................................................................... 166 Proposed Statutory Joint Residence Framework ................................................... 166 The Joint Residence Presumption ........................................................................ 170 Impact of The Proposed Law ................................................................................ 173 APPENDIX B .......................................................................................................... 174 Amendments To Section 68F (2)––Factors Considered Best Interests Check List... 174 Grandparents....................................................................................................... 175 APPENDIX C .......................................................................................................... 177 The Need for Mandatory Mediation....................................................................... 177 Divorce Mediation Research................................................................................. 178 APPENDIX D .......................................................................................................... 184 Proposed Statutory Mandatory Mediation Framework............................................ 184 APPENDIX E .......................................................................................................... 185 Examining Resistance To Joint Custody by Dr Joan B. Kelly.................................. 185 APPENDIX F........................................................................................................... 193 Child Custody and Parental Co-Operation by Dr Frank S. Williams ........................ 193 APPENDIX G .......................................................................................................... 199 Brainwashing In Custody Cases: The Parental Alienation Syndrome By Dr Kenneth Byrne................................................................................................................... 199 4 Executive Summary This paper argues that current family law pathways seem to be wrong with only limited attention given to the emotional, social, and financial well being of all members of the defunct family system. Even a cursory look at the evidence documents that children are victimised by sole custody decisions in at least three ways: emotional victimisation, economic victimisation, and increased risk for child abuse. Research results on joint custody have changed and consensus has emerged in the psychological literature, which suggests joint custody should be a rebuttable presumption of the Family Court. The available literature also supports the following conclusions: • Children adjust much better to divorce in joint custody compared to sole custody; • Children’s attachment bonds to both parents are essential for healthy development, and those bonds should be protected by the Family Court; • Non–custodial parents are often intentionally victimised through contact denial, and children are hurt when the relationship with either parent is broken in that manner; • Joint custody leads to much higher compliance with financial child support; • Mothers are much better adjusted and supported more in joint custody situations; • Fathers are much better adjusted in joint custody arrangements; • Litigation and re–litigation is lower in joint custody situations; • Divorce rates are much lower in jurisdictions which have a presumption for joint custody; • Joint custody is the preferred option in high conflict situations, because it helps reduce parental conflict over time––and that is in the best interests of children; • The current winner–loser system is irrational. The typical custody dispute involves two fit and loving parents who each want to avoid being cast out of the role of parent and into the role of visitor; The purpose of this paper is to review the research with three goals in mind: • To synthesize this research in order to state the conclusions which seem to be suggested by the data; • To suggest areas of research for continued exploration; and • To recommend changes in social policy in certain highly specific areas. We do not believe that government officials should delay legislative action in anticipation of future research findings. To do so would jeopardise the well–being of at least 50,000 children who experience either divorce or unwed motherhood each year, as well as countless others who are currently struggling to cope with the confusion and adversity foisted on them by misguided adults. We now have had the advantage of approximately 25 years of research studies to inform our legislative decisions. It is time to act on this accumulated wisdom. 5 BACK TO THE BEST INTERESTS OF THE CHILD In line with recent changes in terminology introduced by the Family Law Reform Act 1995, residence and contact rather than custody and access will be used in the rest of this paper to describe these roles. However, custody will still appear in this monograph where it is a direct quotation from another source or where there is reference to a specific law that uses custody. Australian Bureau of Statistics data show that following divorce it is mothers who retain day–to–day care of young children in 96% of cases. Consequently, for the purposes of this paper we have considered resident parents to be mothers and non–resident parents to be fathers unless otherwise indicated. The term, joint residence refers to a post–divorce arrangement that attempts to approximate the parent–child relationships in the original two–parent home (Its closest analogue would be what used to be called joint custody). In this arrangement, both parents not only have equal rights and responsibilities for their children's welfare and upbringing, but also have an active role to play in the daily routines of their children's care and development. Each remain as salient attachment figures in their children's lives, the child having frequent and continuing, but not necessarily equal contact with each parent. As the living arrangement that most closely resembles
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