What does it mean for a home to break? Once it breaks, does each of the broken bits remain individually irreparable, until Humpty is put together again somehow? And how does the brokenness or unbrokenness of a home measure up to what is good for a child born into it? Marriages, even when they work, are uneven affairs, as are homes — especially in societies riddled with different kinds of inequality. So, expecting even-handedness in the handling of those that have fallen apart is perhaps asking too much of the art of the possible. The law can formulate guidelines for dealing with such situations, founded on principles of fairness and justice. But it also knows, as Tolstoy did, that unlike happy families that are all alike, each unhappy family is unhappy in its own way. So, the law has to be finely tuned to the particularity of each broken home before making up its mind about the ideal custodial arrangements for the minor offspring. It is therefore unwise, and potentially unfair, to think in terms of “mandatory” conditions when it comes to these matters. So, the activists who are demanding that the Guardians and Wards Act be amended to make shared parenting mandatory should think sensitively, and hard, before asking for absolute evenhandedness.
Just as it is unfair to think that mothers are always the better parent for young children, it is equally prejudiced to assume that it is always better for children to have the equal attention of both estranged parents. Mathematically exact solutions — like giving the child six months of the year with each parent — sound aesthetically satisfying to a certain kind of conservative understanding of what is good for children. But it is precisely this mindset — that no matter what the nature of discord, a single parent is always lesser than the best of a bad job — that has to be examined without moral or sexual bias. It is also difficult for the law to define what the abusive habits could be that disqualify a parent from having access to the child. Besides, the support system created around a child by the single parent could also amount to a perfectly workable ‘home’, however unconventional its elements. To say, in a legalistic voice, that this other arrangement is intrinsically more harmful than a mandatorily cobbled together bi-parental compromise is to stake too high a claim on the sole and natural efficacy of the nuclear heterosexual family.