Jan Piet de Man: shared parenting in Belgium

Posted on April 6, 2014 by

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A Belgian Perspective

Strasbourg conference, Oct 2013

 

 

Jan Piet H de Man opened his presentation about Belgium’s shared parenting at the European Parliament building by using the following PowerPoint display. For ease of reading his presentation has been titled “Card 1, Card 2 ,  Card 3” etc.

Card 1

 

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Card 2

Although the law permits shared parenting in nearly every instance the actual take up  is far lower than one might imagine. So shared parenting is really ‘nearly shared parenting’ with the option of alternatives to shared parenting such as 9-5 allocation of days over a fortnight (see more below).

 

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 Card 3

Here is outlined how the court reaches it decisions. One or both parents can ask the courts to determine the residence time (custody) allotted to each of them. In other words the shared parenting can be sliced at 25% – 75%, or 60% – 40%. Where the court finds that shared parenting (“egalitarian housing”) is not in the child’s best interests (CBI) it can make other arrangements.

 

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Card 4

The exact French wording of the law (loi) is shown below together with its enactment, July 2006. Below is a rough translation into English of the key clauses:

The Act tends to give a privilege or preferment to shared parenting for a child whose parents are separated and regulates matters in how this is effected for the child’s accommodation. 18th July 2006

  •  However, if the Court considers that the ” shared parenting is not the formula most appropriate, it may decide to adopt a non-“egalitarian” accommodation option.
  • The statue Court in any event by a specially judgment motivates, takes into account the full circumstances and concrete cause and interest of the children and parents.

 

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Card 5

Jan Piet de Man then cites two sources for further study when examining family law (custody) awards are enforced in Belgium (Prof. Marta Pertegas and Prof. Frederik Swenneno).

 

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Card 6

Debate has raged in countries that do not have shared parenting about its very feasibility. The argument has been that both parent s must agree and work closely with one another – an oneness of mind – in order for it to work. This has been countered by those in favour of shred parenting who point out that it is desirable but not essential – given the framework is once in place.

Looking at Belgium’s experience this latter view seems to have prevailed. The courts there have the power to implement shared parenting whenever one of he parent requests it. It is then up to the court to approve it. Homologation in this context does not mean the equivalent process of testing and certification for conformity to a technical standards (of say, for a new motor car), which is usually known as “Type Approval” (in English-language jurisdictions) but rather more akin to “accreditation”.

That said, it is clear that full agreement and co-operation between the parents is key to its successful implementation (in much the same way that ‘access’ must be allowed to happen if sole-mother-custody is to work properly).

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Card 7

‘Custody’ is not an automatic right – though it sometime feels like it should be – but is a process in which the court is supposed to evaluate the possibilities of implementing shared parenting in the case before it. If the court determines that the ‘egalitarian housing’ solution (shared parenting) is not appropriate or in the child’s best interests (CBI) it can award another regime of time allocation between the parents.

The actual and potential disputes between parents arising from this form of arrangements will serve to harm the child’s best interests (CBI).

These ‘non-egalitarian housing solutions can last for years and cost both parents and the state a great deal of money. There has to be something better.

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Card 8

This is why in the absence of any agreements between the parents a judge in Belgium can award on shared parenting. For it to happen all it takes is for one parent, say the father, to request it. The translation is not too specific but it gives the impression that the judge can award near “equal parenting” and if that is the case it would obviously trigger discussion between parents for a division more suitable to their needs given that a 50:50 spilt would be disruptive for both parents – especially if they are working – and albeit for different reasons.

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Card 9

Key to Belgium’s shared parenting legislation is a binding parenting plan which both parents must sign up to. {Please also not e that it is not solely the father who is expected to make a contribution to the cost of living expenses of the child but both parents (sub section 3).

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Not having been privy to a divorce in Belgium one cannot comment about the role of mediation but using the UK’s experience, family mediation is always portrayed as central feature but in fact only ‘lip service’ is ever paid to it.

What has been desperately needed (and long recognised by fathers’ groups), is a method of explaining to divorcing parents of the longer term implications of their decision to divorce on their children’s development, i.e. “outcomes” 10 years hence. For 30 years this badly needed adjustment to the highly lubricated exit from matrimony has been ignored.

Britain started down this path in 1996 (“when the court establishes that a reconciliation is possible”) with the Family Law Act 1996 but soon thereafter the act was abandoned. The prospect of saving saveable marriage which was written into the legislation proved impossible to operate without upsetting the velocity of divorces. The key wording is this:

  • Part 1, Sect 1

                              (a) that the institution of marriage is to be supported;

                              (b) that the parties to a marriage which may have broken down are to be encouraged to take

                              all practicable steps, whether by marriage counselling or otherwise, to save the marriage;

 

This effectively castrated the 1996 Act which had been intended to accelerate the divorce process even faster. This is not the intention of the Belgian law but one can see the difficulties a version of it might encounter in Britain.

Compulsory Information Sessions were also a fundamental part of the now defunct 1996 Act and they seem a common feature in many modern attempts at reforming child custody laws. It should be added here that the US appears to have perverted this process. Judy Parejko, in her 2002 book, “Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry”, lays out as an insider (Parejko was a mediator), how the process was corrupted to reinforce family destruction, rather than to reform a flawed regime.

  • “When California rolled out no-fault divorce – over thirty years ago – judges were empowered to force divorce on unwitting spouses, even if there was no just cause. Then, a little-known body of lawyers with immense national influence (the NCCUSL) wrote a model law — the Uniform Marriage and Divorce Act (UMDA) — which endorsed California’s breakthrough by making Irretrievable Breakdown the sole basis for divorce. Within 15 years, every state had some form of no-fault divorce.”
  • “To strengthen and preserve the integrity of marriage and safeguard family relationships,” was the aim of the UMDA. But instead, just the opposite happened — marriage vows lost their meaning and intact families faced grave danger from a system that imposed the ‘right to divorce’ and ignored any pleas for help. After the early dream of the Marriage Hospital was crushed, the Divorce Industry took over and no one has been able to end the ensuing misery. Learn what happened when vested interests turned a good idea into a Great National Tragedy — and how a divorce mediator stumbled onto this sinister scheme during her time working on ‘the inside.’

 

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Card 11

Shared parenting or ‘joint physical custody” in the Flanders part of Belgium (Dutch speakers) was around 10% in 1995 and if any thing slightly greater than in the UK (joint physical custody is here defined as living with one of the two parents for at least 33% of the time).

Sole mother custody had prior to the 2006 legal changes represented 80% of all court awards (with the remaining 20% including elements of joint physical custody and other formats). However, over time this dropped from 80% to 53%. If as the 2013 data indicates, shared parenting has tripled from a < 10% base in 1995, it must by now be 35% to 40% of all awards (53% + 40% = 93% vs. 80% + 10% = 90%).

 

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Sadly, Jan Piet H de Man appears not to have displayed data for the French-speaking part of Belgium.

 

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As ever, conflict and family violence fashionably raises it’s head in discussion of custody. It has always been the underlying contention among opponents to shared parenting that conflict will inevitably increase if shared parenting is adopted as the de facto custody position. However, as Jan Piet de Man shows below, the reverse of this scenario is the actuality. The expansion of shared parenting in the years following 1995 and which was boosted in 2006 have no increased association with parental conflict.

This endorses the posture adopted by fathers groups advocating to shared parenting and is based on the premise that ‘sole mother custody’ and its abuse my mothers inescapably leads to tension between estranged parents. With shared parenting this weapon to antagonise the other parent is removed from the equation and so conflict levels therefore subside.

It is gratifying to see this hypothesis is proven in practice.

Jan Piet de Man also finds that shared parenting will not only ever work where ‘super-educated’ and amicably separating parents are involved – which is the position of opponents to shared parenting – rather he finds that the ‘averagely educated’ can also successfully accomplish shared parenting arrangements.

 

 

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Card 13

In a somewhat restricted sample size, a review of 276 judgements made by Belgian courts (in 2010 – 2011), found that shared parenting was granted to 37% of father who asked for such a set of arrangements. This should more accurately be terms co-parenting, or alternating residence, as the remaining 63% was not made up of sole mother custody awards as one might have imagined but 17.25% was made up of the less rigid “9/5 days” option (which is based on a fortnightly period).

The remaining 82.75% (of the remaining 63%) were made up of the more traditional or ‘normal’ “One weekend in 2” (again, based on a fortnightly period, as is the ‘9/5’ option).

For greater clarity a Table, “Belgian Courts 2010 – 2011” details these aspects which can be found below Card 13.

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Table

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