My wife sent me a link to an article about parental rights in Canadian courts.
The facts seem to be:
The twelve-year old daughter of a custodial father who is in divorce proceedings with the child's mother took her father to court to contest his punishment for posting photographs of herself on-line. (Though some American media outlets have described these postings as "indecent," the earlier Canadian iterations do not describe the photographs.) The contested punishment was not being able to go on a sixth-grade field-trip.
The family-court judge took the mother's wish that the child attend the class-trip as sufficient justification to overrule the custodial father's decision and ordered that the child be permitted to attend. (Again, some American media outlets have stated that the daughter also received "unspecified damages" but I have not been able to confirm this from the earlier Canadian sources.)
I have not found the actual decision, if indeed there was a written decision.
The judge made this choice within the larger context of a complex family-law case and, apparently, justifies intervening because she bought the plaintiff's claim that the field-trip was a sufficiently significant event in a young girl's life to justify asserting the non-custodial mother's will over that of the custodial father.
One question... What does "custodial" mean in Canada after this ruling?
I accept that divorce and custody battles, even those which have been resolved, are complex and result in the unique involvement of courts in the decisions of parenting. Having invited the courts to oversee the breakdown of a family, one cannot complain too much about the decisions one receives. However, this case strikes me as being about the definition of Custody and the judge's decision seems to strike at the heart of "parenting."
At the very least, "parenting" is the obligation of one who has custody over a minor to raise that child to be a fully functioning member of society. While parenting styles may be different from family to family or even person to person, the State inserts itself into those decisions at its own peril.
There IS a role for the State... it picks up when the custodial parent steps over the line of decency and the common-mores of the larger community.
Had the custodial parent shackled the child to a wall or beat her with a stick, the State should have stepped in. These would be extreme reactions, out of keeping with the common-mores of society. But, the proper avenue for interrupting the extreme is through law enforcement... through the police.
And this is the point.
We use the police to interrupt child abuse. We use family services and children's advocates to provide a safe environment for courts to figure out custody. We use courts to determine custody.
Had the court determined that the father was a poor parent and severed custody because this punishment, when considered within the context of other actions, showed that the child's mother was a better "parent," I would have no problem with it. Such is the realm of courts and, as I stated before, having invited the State into the resolution of domestic problems, one cannot complain over-much about the decisions those courts reach.
However, the court interposed itself into "parenting."
The judge put herself into the role of a custodial parent and decided that a particular penalty was too harsh. Perhaps it was... but, unless it was so extreme as to run up against the common-mores of society, the State has no authority over the particular act of parenting.
Even if it did, the proper remedy was police intervention and a severing of custodial rights.
No matter how you look at it, the court overstepped its bounds. If an elected position, one can only hope that the voters give the judge the boot for her arrogance and audacity.
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Since the early 20th century, the judicial standard for the treatment of minor children has been “the best interests of the child”. This standard has been almost universally understood as the protection and guidance of a competent parent. This standard has not been taken to mean the best interests as expressed by the immature child, nor has it been taken to mean the protection and guidance of the best possible parent. Courts have refrained both from allowing children to pick their own custodians, and from taking children away from a competent parent merely because another guardian would be judged somehow "better". Consistent guidance by a natural relative has been seen as of paramount value for children. Parental rights should be terminated or curtailed only when a parent is shown to be incompetent or harmful to the child.
But, based on the information in the post, the Canadian court appears to place great weight on the relative importance of a field trip to the child. This court suspended parental authority because it happened to find itself to be the better parent in this specific circumstance, on the unspoken assumption that “the best interests” of a child are to be decided by the court on a issue-by-issue basis. Based on my understanding of “best interest of the child”, if the father’s parental authority was exercised so poorly as to require the intervention of the court to protect the child from harm, then the court should have removed the child from his custody. If the father was competent enough to retain custody, his disciplinary decisions should have been affirmed. To judicially overrule only this particular parental decision tells both the father and the child that his judgment is questionable and his authority provisional.
When the final arbiter of individual parental decisions is the court, then the true parent is the court, and the so-called custodial parent is a mere agent of the court.
Given the embrace of the Freedom-From-Offensiveness by Canadian jurisprudence, is it any surprise that a Canadian court has seen the need to intervene in a relatively minor disciplinary issue? [See prior post: "Free Speech: Comparing US and Canadian Approaches"] In Canadian law, citizens have such fragile egos and are so easily moved to commit hate crimes that even speaking the truth can be against the law. If Canadian law does not trust its citizens to be mature enough to understand the old childhood chant of “Sticks and stone may break my bones, but names will never hurt me!”, how can Canadian courts trust parents to be mature enough to discipline their own children?
I consider myself a liberal, but I give this warning to any U.S. liberals who would hold up Canada as a paragon of virtue: Though you may be loosing faith in the U.S. government, the Canadian government has already lost faith in you.
You consider yourself "liberal?" Would anyone else at Philadelphia Story like to comment on that proposition?
You DO remember the Ben Frankliesque hippie-hair?
There is a distinction between physical custody of a child and the authority to make decisions on behalf of the child. It is not uncommon that one parent has sole physical custody, and the authority to make decisions for the child remains in both parents. If this is the situation in this Canadian case, the result is not that shocking. However, the cause of action should be the mother's not the child's.
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