One Step Forward, One Step Backward: Canada and Australia (1 of 2)

On June 16 of 2009, Maurice Vellacott, member of House of Commons of Canada, submitted Bill C-422, for a presumption of equal parenting. This bill, if passed, will direct courts to make equal shared parenting the presumptive arrangement in the best interests of the child. On its Preamble, the bill states that among its purposes are to:

(b) encourage divorcing spouses to assume more responsibility for their affairs, with less reliance on adversarial processes,

(c) promote joint responsibility and joint decision-making by spouses in respect of ongoing childcare, nurturing, and development,

(d) establish that the interests of the child are best served through maximal ongoing pa- rental involvement with the child, and that the rebuttable presumption of equal parenting is the starting point for judicial deliberations…

This historic bill is the result of the efforts of many pro joint custody organizations in Canada, especially of The Canadian Equal Parenting Council (CEPC, www.canadianepc.com). The Council is a coalition of 38 pro joint custody organizations encompassing a range of issues related to family and social justice in Canada. In its mission statement they write:

The primary mission of this organization, and the movement it represents, is to secure every child’s right to be equally parented when the relationship between the father and the mother breaks down.

Last week we rejoiced for the triumphs of Amor de Papá in Chile. Now we have to rejoice for the triumphs of our Canadian brothers and sisters. If Bill C-422 is passed, the fight for the right of our children to have two parents would haven achieved a historic milestone.

A Victory in Chile

Amor de Papá (Father’s Love, www.amordepapa.org), a pro joint custody organization that fights to reform family laws in Chile and to avoid Parental Alienation Syndrome (PAS), has achieved an important victory in court (www.amordepapa.org/declaracion_20090708_David_Abuhadba.php).

Last June 30th of 2009, a Chilean court declared admissible a Motion of Inapplicability for its Unconstitutionality of Article 225 of the Civil Code, submitted by the President of Amor de Papá. This motion requested the court to declare unconstitutional this article, that states on its 1st and 3rd sections that: “If the parents live separated, the personal care of the children will be awarded to the mother", since that precept is considered is contrary to Article 19 No. 2 of the Chilean Constitution, that states that: “Equality before the law. In Chile, there is no privileged person or group. In Chile, there are no slaves and anyone who steps on its territory is free. Men and women are equal before the law. No law or authority could establish arbitrary differences.”

The motion affirms that "the imperative of l article 225 section 1A of the Civil Code results discriminatory regarding men, since for the processes and activities of ‘personal care of the children’, in other words, those processes by which the parent or parents should adopt decisions that allow to secure the best spiritual and material fulfillment possible of the minor, as to secure that children can exercise the essential rights that emanate of human nature (…) it has not been proven, nor determined that women are necessarily in a better position than men or that they have an expertise, abilities, capacities or aptitudes different from other gender to do so.”

David Abuhadba, president of Amor de Papá (see picture), affirmed that “this resolution is historic in Chile. It is the first big step to end the daily violation of the human rights of children and fathers at the family courts of our country.”

The fight for the rights of our children is one that is built day by day, step by step, battle by battle. Victories like these are the ones that will give us the final victory, and the ones that encourage us to keep on fighting.

To the brothers and sisters of Amor de Papá, congratulations for their achievements, that are many already, and a hug in solidarity. Keep on fighting.

Kidnap As an Instrument of Punishment

Recently it has become notorious the case on which a Brazilian woman, Bruna Bianchi Carneiro Ribeiro, who lived and was married in New Jersey, kidnaps her child and takes him to Brazil (http://www.redbank.com/blog/sean-goldman-usa-parental-abduction-brazil), forcing the father to engage in an intense international legal fight to recover his child. Thanks to this sad case, there is now a public discussion of the great problem of parental kidnapping.

Although there are international laws against parental kidnapping, these are poorly enforced and frequently manipulated for the convenience of the kidnapping parent, who usually takes the child to his/her country of origin. Ironically, in the above quoted case, Bruna remarried in Brazil, this time with an attorney specialized in family law, who has even spoken at The Hague on the issue of parental kidnapping. Bruna dies and is this attorney who has stopped the child of being reunited with his father. Human nature never ceases to be perverse.

I also say that we should use this opportunity to discuss the negative effect that the physical distance between separated parents has on the children and on the bond between them and their parents, specially with their fathers. I say this, because in very few states (I only know the case of Pennsylvania) there are laws that stop that a parent with joint custody could leave the state where he/she lives, putting this way distance between the children and the other parent.

Kidnapping their children is a tactic that many women use once they loose the custody of their children to their father. And moving out, sometimes thousands of miles away, is a strategy frequently used by mothers once joint custody is awarded to the father of their children. What is the difference between kidnapping children and taking them to where it will be impossible for them to stay in contact with their fathers?

In the movie Jarhead, there is a scene on which the soldiers, already in a camp in the desert, put something like a wall of shame, on which they put pictures of the women that that have betrayed them. One of the pictures show a women with a child, with the words: “I loved her and she took my kid and disappeared.”

Next time your ex-spouse tells you the she will take your children where you cannot see them, do not ignore her. Maybe it is not a threat. Maybe it is a plan.

Joint Custody and Adopted Children

Let me start with clear and unquestionable truth: Sole custody endangers the bond between adoptive parents and adopted children.

For us, parents of adoptive children, divorce after adoption brings a special kind of tragedy that adds to the already tragic condition of living without our children. I have referred to Beck v. Beck case before in this blog for several reasons. This case set a precedent for joint custody cases, stated the primacy of physical custody as the factor that defines parent-child relationships, and stated that a children have equal need of their fathers and mothers. However, I have another reason far more personal. In this case, what is in dispute is the custody of adopted children.

While having children is always a blessing, being, like in my case, incapable of having biological children and receiving the gift of an adoptive child, is a very special privilege. This child is never an accident, an unplanned consequence: this child has been chosen by the love of his/her parents. I will not try to explain here how many and beautiful are the dreams of a parent who adopts a child. Neither will I try to explain the profound and tender love that adoptive parents develop for their children. Nevertheless, I will certainly try to highlight the importance of physical custody for the parents of adopted children.

The fact that allows people to adopt as their own other’s people children, is that what really makes a child your child is that he/she is raised by you, and what makes someone your parent is that he/she raised you, and by raising I refer to the day to day type of contact that only physical custody can provide.

Even when adopted children get to know their biological parents, the children will consider parents only the ones who have raised them. This fact implies a truth that should be considered here: that in the absence of a bloodline between a parent and a child, like in the case of adopted children, sharing the dynamics of day-to-day life is what creates the bond between them. For an adoptive parent, the physical custody of his child is not one of the ways to create a bond with his child, it is the only way. Beck v. Beck affirms this singularity of adopted children, stating:

…that because the girls were adopted, they needed “the benefit, contact, and security of both parents.” 86 N.J. 489 (1981)

Beck v. Beck admonished against endangering this attachment between the adopted girls and their father:

Viewing the issue in terms of the importance of fatherhood in the lives of the two girls, it (the court) concluded that the lack of real contact with the father would have negative developmental effects, particularly because the girls are adopted. 86 N.J. 492-93 (1981)

Depriving adopted children from one of their parents, as family courts usually do in custody cases, takes away for the second time what life has already taken once: the love, comfort, and security that only their father and mother can give them.