By Lee Chabin
I recently came across an article, ‘Custody’ and ‘access’ terms promote conflict, litigation. (Thanks to whoever shared it.) The article appears on “AdvocateDaily.com: Canada’s Legal News”, but is as valid for readers in the United States as it is for Canadians.
The subject of the article – how language affects conflict in parenting disputes – isn’t new. You may know that “custody”, the term found in many statutes dealing with arrangements for children following a separation or divorce, is the same word used in the criminal justice system (as in, “The suspect was taken into custody”). It is also the same word that is sometimes used in regard to property. But of course, children are not prisoners or property.
But, does language really matter?
Speaking from personal experience, I can say that one or two words can make a very big difference. Many years ago, during my own divorce, I was absolutely infuriated when my wife’s attorney condescended to tell me that “Your daughter can visit with you. You can have a room for her, with her own bed. . .” I mean, how hard would it have been for that lawyer to have said instead, “Let’s talk about how the two of you as parents are going to raise your child.” Like “custody”, “visitation” is a word associated with the criminal justice system.
The article notes that:
British Columbia is the first Canadian jurisdiction to change the terminology from “custody” and “access” to “parental responsibilities,” “parenting time” and “contact” in the province’s new Family Law Act.
How many of the states in the U.S. have done the same is a question I can’t answer. (If you happen to know, please share that information). But it is a step forward, and not an insignificant one.
One reason that the article made an impression on me is because a judge was quoted as saying:
“These words denote that there are winners and losers when it comes to children,” says Justice Mary Lou Benotto . . . “They promote an adversarial approach to parenting and do little to benefit the child. The danger of this ‘winner/loser syndrome’ in child custody battles has long been recognized.”
When judges speak out, at least a few people tend to notice. But, changes that would seem to allow for obvious improvements can be frustratingly slow; and, I’m not expecting the terms “custody”, “visitation” and “access” to be replaced nationwide anytime soon.
By the way, if you read the article, you will see that an attorney who is interviewed for it, Steven Benmor, offers that “replacing [such] words with “parenting time” would be in the best interest of the child.” [emphasis added]. Recently, I wrote about this subject for nyparenting.com, in a piece entitled Best Interest of the Child: A Vague Notion. The AdvocateDaily.com article does not define “best interest of the child”; but, it is interesting to see how this nebulous phrase – one that denotes an extremely important concept – is used.