Issuu on Google+

A Pro-Active Approach to Parenting in Family Law Cases Presented at the Mens Support Group of Ireland ‘Making Shared Parenting Work’ Conference Maldron Hotel, Portlaoise, July 17th 2011. Róisín O’ Shea, PhD Candidate, Waterford Institute of Technology Research topic; ‘Judicial Separation and Divorce in the Circuit Court’ Funded by the IRCHSS ( Irish Research Council for the Humanities and Social Sciences)

I commenced my PhD research in October 2008, which involves observing Family law cases in the Circuit Court in Ireland, and to date have observed 675 cases in five of the eight circuits, Dublin, Cork, Western Circuit, Eastern Circuit and the Midland Circuit. My research findings are not an opinion, not a theory, they are statistically verifiable. The findings are universal, across all circuits and all courts. The majority of applications to date for Divorce and Judicial Separation have been initiated by women. All of the contested cases that I have observed were applications brought by the wife. I have still not seen a single case where the wife was ordered to pay maintenance for a child/children or a spouse. Where an order is made to transfer the home into the sole name of one party, almost 70% of those orders were in favour of the wife. Where a sole right to reside was ordered, again the wife is favoured in 99% of the applications observed. These patterns could be clearly identified from 400 cases onwards. On the face if it there appears to be a bias against men, however, a qualitative analysis of my observations indicates that this perceived bias is in fact a result of societal norms and social factors around the traditional family unit in Ireland. Where maintenance is at issue, the primary earner will become the payor, and the primary carer the recipient. Maintenance is rarely awarded to a spouse. Out of the 675 cases I have observed to date the primary earner was the man in 673 of those cases. I can personally attest to the gender neutrality of legislation on separation and divorce, as I was the primary earner in my marriage. What my research tells me, is that contrary to my own expectations, it is a very traditional family unit that presents in the Circuit Court, and our Court system reflects current social conditions. Parenting is a battleground in Family law cases, with little or no consideration given by the parents to the rights of the children. Why is it that in 99% of the cases before the Circuit court, women are the primary carers of the child or children, when in reality most fathers are 50/50 parents before the break-down of


a marriage or co-habiting relationship. It is clear from the evidence given in court, that the woman becomes the primary carer on the break-down of the relationship , as it is predominantly the man who leaves the family home when the marriage/relationship breaks down. All players in family law cases seem to presume that young children are better off with the mother as the primary carer, that presumption leads to actions by the fathers that fundamentally changes the dynamic of parenting, and leads to an outcome in court that reflects the current circumstances of the parties. The social problems of two homes, often a bedsit or unsuitable accommodation for the non-resident parent, means that shared parenting becomes extremely difficult to implement. Judges are often asked to deal with minute details of the lives of children, in the pressure cooker environment of a court-room, with the burden of the waiting list standing in the hallways to deal with. It is also evident from my research that third party carers play a significant role in looking after the children, organised by the primary carer, whether or not the non-resident parent is available to mind the child/children. In the majority of access disputes, children are used as weapons, by one or both parents. The more acrimonious the break-up, the greater the impact on children. Children are often possessions in the mind of the primary carer, who sees control as the most important tool in the parenting box. However, while the statistics show that women, in the majority of cases, are the primary carer, the men who were in that role also behaved in the same controlling manner, to the detriment of the welfare of their children. I continually see children’s rights being undermined by custodial parents, who frequently unilaterally cease access. The reasons most commonly expressed in the court-room being; “ he hasn’t paid maintenance so I decided he couldn’t see my child”; “ the child/children get upset when he comes to collect them so I decided to stop access until we came back to court”; “ he sent me vicious insulting texts, he’s not fit to have time with my child/children”. Where a parent continually resists the contact orders made by a court, the only application being made by the other parent is to seek to have the non-compliant parent arrested and jailed. Given that the non-compliant parent is usually the primary carer, the courts do not see this sanction as a real option. A more powerful deterrent could be the loss of custody by the primary carer. If a parent cannot put the interests of their child ahead of themselves, are they really fit to be the custodial parent ? The possibility of losing custody, rather than committal, may prove to be a more powerful deterrent.

My primary research involving interviews with Circuit Court judges indicates that they receive no specific training to deal with Family law cases, no tools are made available to the judge to assist him or her in assessing the best practice care arrangements based on social research findings. It is a failing of the State that no specific training or continuous professional development is made available for Judges who are asked to make orders that restructure rights and obligations within the family, concerning parenting, support, and property and debt division. As Justice R. James Williams, of the Supreme Court Nova Scotia, said here last year at the Canadian Irish Family law conference,” many of the issues involved in family law cases are non-legal, or interdisciplinary in nature...Family law struggles with


the how, when and who of hearing the children’s “voice”. What effect should a child’s wishes or statements be given? Should judges speak to children? When? On the record?”. Some Irish judges tell me that they do speak directly to children, and research from Israel, ‘the Child Representative Project’ carried out by Tamar Morag and presented at a Family law conference in Denver 2010, showed that in 50% of cases where Judges spoke to children in chambers, those judges believed they had a better understanding of the needs of the child.

I am a member of AFCC, the Association of Family and Conciliation Courts. It is an interdisciplinary, international association of professionals, including judges, legal practitioners, mental health professionals, mediators and academics, dedicated to improving the lives of children and families through the resolution of family conflict. The vision of the organisation is to have a Justice System in which all professionals work collaboratively through education, support, and access to services, to achieve the best possible outcome for children and families. Planning for Shared Parenting; A Guide for Parent’s Living Apart, has been developed through a collaborative effort of the legal and health communities, supported by the AFCC. The guide contains developmental research about children and the impact of divorce on their lives post the break-down of their parent’s relationship. Findings in the guide include; • That children do best when both parents have a stable and meaningful involvement in their children’s lives • That each parent has different and valuable contributions to make to their children’s development • That communication and cooperation between parents are important in arranging children’s activities. Consistent rules and values in both households create a sense of security for children of any age. One of the most consistent research findings is that children are harmed when they are exposed to conflict between their parents. It is of critical importance that parents do not argue or fight when they are picking up or dropping off their children. In terms of developmental norms, AFCC research over the last decade has shown that; From birth to 18 months •

Children at this age form multiple and simultaneous attachments. In situations where both parents have been regularly involved with all aspects of care-giving, and the child has formed an attachment to both parents, then overnights should be considered Infants have a limited ability to remember an absent parent and should have frequent contact with both parents, while maintaining an infant’s basic sleep, feeding and waking cycle.


• •

Where a parent has not been involved in care-giving, short visits of several hours every few days will help development a mutually secure relationship. A child should have frequent contact with both parents, and not be away from one parent for more than a few days

From 18 to 36 months • Children at this age do not have an adult’s concept of time. Frequent contact helps the parent and child establish and maintain a mutually supportive relationship. • Where a parent, pre-separation was not actively involved as a caregiver, two to three daytime contacts weekly allows the parent child bond to strengthen. Overnights can be planned after a short time if the child does not show signs of undue stress. • Daily telephone contact at a regular time is reassuring to the child and the absent parent The Guide makes shared parenting recommendations for defined developmental periods, from 3 to 5 years, 6 to 9 years, 10 to 12 years, 13 to 15 years and 16 to 18 years. The guide categorically states that Children are harmed when parents; • Encourage children to choose between them. • Make promises they do not keep. • Criticize the other parent to the child or in the child’s range of hearing. • Use the child as a messenger or negotiator, or seek information about the other parent from the child. • Withhold access to the child for any reason unless there are safety concerns. • Involve the child in the court process or share legal information. • Introduce a new partner without adequate preparation. Remember that children need time to grieve the loss of family as they knew it and may not be ready to accept a new partner. The recession has brought about rapid change in social conditions in Ireland. In 2007 157,000 people were signing on, by June 2011, according to the CSO seasonally adjusted figures, 446,800 were on the live register. 66% of the newly unemployed for the last 24 months are men. While the average for that period is 66%, the indicators are that the ratio of newly unemployed men to women is increasing on a monthly basis; the CSO latest figures show that 69% of the newly unemployed for June 2011 are men. More men are now in a position to be full-time carers, or at the very least are available to be 50/50 parents. The question is, will outcomes now begin to change. The social norm to date is that the primary carer is the woman. While she usually does not seek spousal support, she does seek child maintenance, supplemented by children’s allowance. On evidence, access and maintenance are often inter-twined. The woman who is


not receiving the maintenance ordered, feels entitled to restrict or curtail access. This position reflects the perceived controlling rights of parents, and disregards the rights of the child to the company of both parents. The men I see I see in court appear to be frustrated with their inability to enforce access orders- their perception is that the system is against them, that nothing they do will make the primary carer comply with contact orders. This is more clearly enunciated by men who present as lay litigants- lay litigants present in 26% of all cases, 66.42% of those lay litigants are men. Given that this conference is being held by the Men’s Support Group of Ireland, the question is, how can fathers pro-actively approach parenting in family law cases? 1. If possible do not move out of the family home, when the marriage/relationship breaks down- Where violence is an issue barring orders are the interim remedy 2. Seek mediation to develop a parenting plan and to structure separating from your spouse/partner 3. Seek counselling to deal with the emotional fall-out at the end of a relationship 4. Attend a parenting class, whether you think you need it or not 5. Devise a parenting plan around the needs of the children 6. When you do move apart, make a record of everything- it is far easier for a judge to read a log than hear vague testimony about breaches of any contact orders 7. Litigation should be your last resort.

I have travelled extensively in my life-time and I can see the commonality of the human condition, marriage/relationship break-down looking the same in Hanoi, North Vietnam as it does in Avoca Co. Wicklow. Upon completion of my PhD I hope to start postdoctoral work developing the concept of a one world, best practice, family law holistic model, that reflects the commonality of humanity, whilst being capable of adaptation based on religious/cultural/national grounds. That project will reach out to the international community, embracing the multi-disciplinary approach of the AFCC, to consult with professionals engaged in Family disputes, by way of Family law proceedings, dispute resolution or counselling, to develop all the strands that will assist families in conflict to reach settlement sooner rather than later.

Inter-parental war-games have no place in family disputes - The welfare of the child/children must be the priority for all parents. Less-adversarial systems need to be in place, to assist parents move from relationship breakdown to meaningful and co-operative co-parenting.


In closing I would like to congratulate Men’s Support Group of Ireland for organising this conference. If father’s knew to contact your group as soon as their relationship is breaking down, you could ease that trauma with clear advice, and thereby significantly improve the welfare of children who get caught in the cross-fire of inter-parental conflict. I don’t believe that any parent sets out to harm their children, its just that it is hard to think clearly once the war has begun- we all have a role to play to help in the break- out of peace, by offering whatever expertise and knowledge we have to protect those who have no voice – our children, and equally we need to provide support to parents at a time that they are dealing with the psychological impact of the death of a relationship and the death of a way of life.


A Pro-Active Approach to Parenting in Family Law Cases