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  • stepper
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15 Nov 10 #234807 by stepper
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I don't mean that a 50/50 shared care agreement should be forced on anyone Charles - I think it should be the default arrangement by law. Parents must then work within that framework to do what is best for their children.

I think it is morally wrong for parents to have to resort to the Court in order to gain contact with their children especially when one parent may be blocking the other parent's contact with the children. Without a formal basis, the resident parent always has right to deny contact to the non resident parent which does not benefit the children in the majority of cases.

With a 50/50 default shared care, the starting point would be clear to all. Most parents should then be able to work out what is best for the family. The Courts should only be necesssary if there are valid reasons for their input.

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15 Nov 10 #234865 by .Charles
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The court is already there to assist where there is a conflict.

You mention the 'resident parent' but in situations where shared care is appropriate, there is no such parent. It is a minority of cases that are litigated - the rest are able to agree contact and residence without court intervention.

Most conflicts arise where a parent has been the primary carer for the child/ren whilst the other parent goes out to work. When the parties separate, the children remain with the primary carer – a situation which, under the Children Act 1989, is beneficial as it preserves the status quo.

In these situations and under your proposed '50:50 by law' arrangement, the non-resident parent could insist upon 50:50 care even if this was detrimental to the child. If the resident parent sought to vary this s/he could be hauled to court to explain themselves. This would be no better than the current system.

The current system has its faults and can never be perfect as enforcing a decision upon two parties with diametrically opposed views leads to one or both parties not achieving what they want.

The problem lies with the parents rather than the court system. You say it is morally wrong to have to go to court for contact but at the same time promoting a system which prescribes mandatory 50:50 shared residence - even if this is not appropriate.

As an example, if a parent was a drug addled sex offender, do you propose that 50:50 shared care would be appropriate until such time that the other parent applied to vary this? Alternatively, one of the parents has a long-standing mental illness - borderline sectionable - is shared care appropriate then?

Here is another example. The mother has suffered from severe domestic violence from the father and eventually leaves with the parties' son. The mother does not want any contact to take place as the son is showing signs of violent behaviour and is apt to mimic his father's violent tendancies upon return from contact visits. The Children Act will promote contact for the child's sake but will also cease contact for the same reason subject to the findings of a psychological and CAFCASS. Does the mother have to apply to court to vary the 50:50 principle knowing that she will have to face the father despite her fear of him?

(all three examples above are from files I have worked on)

And another example which I've touched on in my previous post. If a resident-parent with minimal employment experience decided to return to work full-time on minimum wage, would it be reasonable to expect the non-resident parent to reduce working hours or give up their job to accommodate this even though their skilled wage adequately provides maintenance for the child, the resident parent and themselves? If you can enforce a 50:50 law, you can do it both ways - to increase as well as decrease the level of care that the 'other' parent is getting.

Your proposal raises more problems that it solves. I'm not saying it is wrong but I am saying that each case has to be approached on its own merits which is what the current system does. Not everybody plays by the rules as relationship breakdowns can be bitter and cause parents to act in the most unconscionable ways – such as using the children as pawns to make their ex suffer.

Charles

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15 Nov 10 #234902 by stepper
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I take your points charles, but are they the exception rather than the rule? Of course the Courts should be involved where there are serious domestic issues, particularly violence. I don't think anyone would disagree with that.

I still believe there should be a default starting point for shared agreement, preferably 50/50. Who is to say who has been the main carer in any marriage or that one parent has provided more care for their children than the other.

The present system unless there is a Court order in place, allows the resident parent to block the other parent from contact with the children at their own discretion. I think this is an injustice.

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15 Nov 10 #234909 by Stubbley
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Charles......

We can all pull situations and issues out of the air to highlight both polar issues regarding why and why not, residence should begin at 50 50.

I am new to all this and not an expert in any way but, I believe that the default of all cases should begin at 50 50.

The expression "primary carer" pops up all the time when the mother wants to defend her stance of residence. Is it the fault of the parent who goes out to work to lose his or her child due to this? What if both parents are on the dole claiming benefits and raising the child equally and then enter court only to find that the mother has more rights than the father? The court system to me seems ridiculous when it comes to fairness and equality.

Surely the default should be 50 50 and then working from there. The complications of distance, violence, accommodation, work and all other issues should then be ironed out accordingly but, the onus should surely start as equal?

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15 Nov 10 #234934 by Alex111
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Why is there such a strong bias towards the mother anyway.
Why is it automatically assumed the children will be better of with her when a couple split.
If the man has been a house husband looking after the kids full time whilst the mother works and the couple split will he get the kids.I doubt so.
If I won the lottery tommorow and gave up work would the courts give me my son 50% of the time because I no longer work.
I doubt it.
If my ex started work so put my son into childcare for say 3 hours a day shouldnt I have the right to have him for that time instead if I could reduce my work hours.
Surely he would be better off with his father than with strangers.

What does it actually take for the kids to be taken away from the mother.Must she be a drug addict,or an alcoholic,or extremely violent?Probably.Why are the boundaries so extreme.

If upon a split the courts did not award 50/50 automatically then it should be that a goverment body,Cafcass or whoever would award 50% to the father if following a split
he was investigated so as to conclude his suitability.If no reason to decline was found then 50/50 should be awarded.
This cancels out an automatic 50% to a father who may be a drug addict etc etc.

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15 Nov 10 #234940 by Butnotnow
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Having just had my fifth hearing in almost two years worth of 'legal fun' and taking almost 2 1/2 yrs to get to a level of contact that my D was capable of when Ex left, having to listen/read Ex's Sols aggressive and provocative point scoring despite being able to prove Ex's versions of what happened are somewhat fanciful (being polite here) I can say without any hesitation and taking into consideration what Charles has said contact should be presumed as equal from the beginning.

I appreciate many will argue that it does not work and in some ways I would agree, in truth parents will work out what works for them & the children over time. However the problems caused by the existing system promote controlling / spiteful behaviour on both sides, create additional tensions where they are not needed and allow one parent (PWC often but not always) to carry on the assult on the other parent through the children.

It will be interesting to see what happens now funding is going to be stopped for most Family contact cases, I can say for sure that had my Ex not got funding it would not have taken anywhere near as long to get to where we are, and more court action next year (review) to look forward to.

BTN

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15 Nov 10 #234941 by zonked
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Charles_prev.fleagal wrote:

Your proposal raises more problems that it solves. I'm not saying it is wrong but I am saying that each case has to be approached on its own merits which is what the current system does. Not everybody plays by the rules as relationship breakdowns can be bitter and cause parents to act in the most unconscionable ways – such as using the children as pawns to make their ex suffer.

Charles


I fail to see how extending the presumption of contact to one of shared parenting creates risk. In the examples given the respondents would presumably argue against shared parenting in much the same way as they might currently argue against contact. It doesn't create much of a change for them. It would though make a huge difference to fathers in the courts or making agreements outside the system (but in the shadow of the law). By making fathers more confident about outcomes and raising their expectations you help redress the gross power imbalances they currently face.

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