Dr. Christensen is president of the Gender Issues Education
Foundation, based in Edmonton, and is a professor emeritus of
philosophy at the University of Alberta.



 This is a brief essay in support of the international movement
for a judicial presumption of equally shared parenting -- joint
legal stewardship and residential time as equal as is practicable --
following parental separation.
 Those who oppose this movement deny that there is or ought to be
a moral or legal right to that outcome. For example, they say that
child custody and parental contact should be decided on the basis
of "the best interests of the child", not of parental rights. They
may even dismiss the very idea of parental rights, using pat phrases
such as 'children are not property'. In so doing, they are denying
some fundamental legal and moral principles.
 One sophistical argument should be exposed at the outset. It is
often replied that "each case is individual, and the courts should
be allowed to make flexible judgments". But this is deliberately
misleading; a presumption can always be overridden by sufficient
contrary reasons, as is illustrated by the "presumption of
innocence". This flexibility argument is also manifestly insincere:
apart from ignoring all the other presumptions in law to which it
would apply equally (equally badly), these opponents usually go on
to promote presumptions of their own, such as the "primary
caregiver" one. (See below. They also promote one involving spouse
abuse; false accusations of such abuse, rampant today as a tactic
for getting custody in divorce, is a topic for another time.)
 Parental rights
 The error of this position is easily realized. If parents were
really regarded as having no rights, then at birth all parents would
have to convince a judge it is in the child's best interest for them-
-instead of some unrelated person or persons--to have custody.

Consider especially all those stable, middle-class couples desperate
to adopt, and all those poor or less able couples and single women
having babies. Imagine judges saying to biological
parents: "Children are not property! How dare you try to keep this
child for yourself, when his interests would be far better served in
another home. He can get to know you and his roots when he is grown."
 From the fact that parents do have rights, moreover, the
presumption automatically follows that those rights continue after
separation and divorce. The reason: genuine rights, unlike mere
interests, can be abrogated only for serious cause.
Hence the burden
is on others to prove that any abrogation should occur; creating a
burden of proof is simply what a presumption does. The existing de
facto assumption, that the rights of one of the parents shall be
terminated, is thus a violation of fundamental human rights.
 Of course, parental rights are only part of the equation; the
rights of the children can outweigh them. (Political Philosophy 101:
mere interests cannot outweigh a right--at best another right can do
that.) A presumption that children belong to mothers has
traditionally been rebuttable only by the right of a child to be
safe from harm--by her being wholly "unfit". By all rights and all
compassion, that presumption belongs to fathers as well.
 Usurpation of individual rights by the state
 In fact, it is not even possible to eliminate legal rights over
children; such rights can only be transferred.
There is no escaping
the need for some adult(s) to make decisions for underage
individuals. Hence any who do so for a given child ipso facto have
rights to that child, be they parents or parent-surrogates or judges
or bureaucrats. Those who employ the 'children are not property'
rhetoric in fact regard children as the property of the state.
 What makes the traditional divorce system such a moral outrage,
then, is the state's wholesale appropriation of parental rights to
Courts have no moral right to "grant" custody--to give away
what they do not possess in the first place--but only to intervene
where individuals'
behavior has relinquished their moral rights.
Only if there is serious fault by one of the parties is giving sole
custody to the other one ever justified. That the state is already
in the habit of taking away parental rights without just cause does
not make the act any less despotic.
 That parental legal rights must be equal rights follows from the
fact that marriage is supposed to be an equal partnership.
That is
the idea behind division of financial assets upon divorce. In a
traditional-type marriage, for (just) one example, her caring
directly for the children leaves him free to pursue financial gain;
hence the fruits of his labors belong also to her. But by the same
token, his financial caregiving enables her to give in-person care
to them; so the fruits of her labors are likewise rightfully his.
The idea that sole control should be given to the former "primary
caregiver"--the presumption often promoted (but refuted in our other
essays) by opponents of parental equality--is as terribly unjust as
would be one of sole custody for the former primary breadwinner.
 AND children's rights
 Finally, it is revealing that those who would have us eschew
parental custody rights usually don't speak of children's rights,
either, just of their best interests. This likewise leaves all such
rights in the hands of judges or lawmakers, to assign as they
please. But a legal presumption of shared custody between parents
after divorce follows as well from the right children have for their
needs to be supplied by their parents.
 That children have a natural right to the protection and care of
both parents has always been recognized by courts and governments;
it is the basis of the legal obligations imposed upon them both.

(And it is crucial to recognize that this is a right, not an
interest. Though it is in your best interest to be given $1M by a
randomly picked judge, no court would order it.) The problem is that
courts and governments have gotten into the habit of ignoring
children's natural right to personal support, recognizing only their
right to monetary support, where fathers are concerned.
Once again,
however, being a habit doesn't make it morally or legally legitimate.
 To repeat, only a child's right to be safe from serious harm--
not merely her interest in being rather better off--can legitimately
override the rights of a parent. But in fact, children's best
interests are far better served, in a large majority of cases, under
the stewardship of both parents.
(And the majority of cases is what
presumptions are designed to fit.) Both daily observation and a
growing mass of sociological research attest to the suffering and
emotional disability caused to children by father loss and father
absence--with their later consequences in harms such as low
achievement, teen pregnancy, juvenile crime and youth suicide.
research also reveals that a pittance of "visitation" with the
father helps little. Opposing the equally-shared-custody presumption
on grounds of the best interests of children, consequently, is yet
another sham.
 The workability argument
 One argument from opponents of presumptive shared custody does
have some merit. It can work "only where parents get along", they
say. However, granting legal status to this concern means one parent
can avoid sharing simply by creating conflict--in which case
existing prejudices are apt to decide who gets sole custody. Indeed,
this tactic is in constant use under current law.
But rewarding
conflict is not in the best interests of children.
(The tactic would
be squelched by use of the "friendly-parent rule"--already the law
in Canada though ignored by judges: in intractable conflict, give
sole control to that parent most willing to accommodate the other
 In fact, there is an ironic further reason why the workability
argument is ultimately illegitimate: much of the conflict in divorce
is caused to begin with by the winner-take-all system of sole
Faced with the terrible prospect of losing their children,
both parents may fight like wildcats. The fundamental problem with
the divorce system as it is now is not that rights are
being "emphasized over obligations" (a false claim made by opponents
of presumed equal parenting); it is that one parent loses all
rights. Only ending fear of that loss, and replacing it with
society's expectation that the two will find ways to work together,
can end such conflict.
 We all know that conflicts between people can often be overcome.
Just as most who could never stand to live together in the first
place can still cooperate in the workplace, those unable to go on
living together can continue to share parenting. Hundreds of
thousands of former partners who thought they would hate each other
forever have learned this lesson. With such helps as co-parenting
education and co-parenting plans, most couples in conflict will be
able to make it work. And that is what is in the best interests of
the children.