Family Matters No. 29 - August 1991

Changing families, changing laws

Patterns of parenting after separation.
Margaret Harrison

Abstract

Family law needs to reflect, and perhaps even pre-empt social change and community values however diverse, inconsistent and difficult to ascertain these may be. As knowledge about the effects of conflict and parental loss on children increase, so does the need to ensure that laws and services designed to maximise the welfare of children during parental upheaval are achieved. The author discusses recent moves to reform laws which affect both parents and children after separation. Her discussion is based on issues raised in the Family Law Council's discussion paper 'Patterns of parenting after separation'.

Family law needs to reflect, and perhaps even pre-empt social change and community values however diverse, inconsistent and difficult to ascertain these may be. As knowledge about the effects of conflict and parental loss on children increases, so does the need to ensure that laws and services designed to maximise the welfare of children during parental upheaval are achieved.

AIFS Fellow, Margaret Harrison, discusses recent moves to reform laws which affect both parents and children after separation.

As mentioned elsewhere in this issue, a Parliamentary Joint Select Committee is currently inquiring into various aspects of the operation of the Family Law Act. The second of the Committee's Terms of Reference requires it to consider the 'proper resolution of custody, guardianship, welfare and access disputes'.

Coincidentally, the announcement of the Parliamentary review occurred at about the same time as the Family Law Council released its discussion paper, Patterns of Parenting After Separation. The paper was prepared over a period of several years, the catalyst for it being continued unease about the meaning and role of joint custody, which had been canvassed inconclusively in the Council's 1987 report, Access: Some Options for Reform. In addition, concern had been expressed that the 'custodial orientation' of the Family Law Act was perpetuating a winner--loser mentality amongst parents, which in turn was detrimental to the welfare of their children (Edgar 1986).

Patterns of Parenting After Separation was prepared by a committee appointed by the Family Law Council, which was provided with rather daunting terms of reference. These included: ascertaining, from Australian and overseas research studies, what pre- and post-separation patterns of parenting were identifiable; examining these in relation to the effects on children of current Australian family law practices; evaluating models of cooperative parenting to identify their relevance to Australian families; developing models for instituting cooperative parenting after separation in relation to the various alternative dispute models; and indicating what legislative and other changes may be necessary to ensure that pre-existing parenting patterns are either respected or improved upon after parental separation.

While being extremely difficult issues to tackle, they are intrinsically important and, of course, relevant to a large proportion of the population. In addition to the approximately 44,000 children whose parents divorce each year, there are unknown numbers whose parents separate temporarily, or whose relationships end but who do not divorce, possibly because they have never married.

Two chapters of the discussion paper examine the various ways in which parenting decisions are made now, and the manners in which disputes are resolved. The former sets out briefly the array of private agreements, consent orders, child agreements and litigated orders which parents may arrive at or be subject to under present law. The latter explains the interventions by counsellors, courts and activities coming under the umbrella of 'alternative dispute resolution'. These chapters set the scene for material on values, assumptions and language which forms an important focal point for the remainder of the paper.

As Richards (1991) has remarked: 'Policy making about divorce and, in many respects, the ways in which individual cases are viewed, are based, in part, on assumptions about the consequences of divorce for children'. The discussion paper stresses that the time for reliance on assumptions has passed, as a sufficiently large body of reliable research findings is available to allow a number of conclusions to be drawn and remedies for improvement suggested.

These include the finding that most children want and need contact with both parents, and their wellbeing can be detrimentally affected by the long- term or permanent absence of a parent from their lives. Despite this, many non-custodial parents spend less time with their children as the separation recedes into the background.

Physical withdrawal has often been accompanied by a withdrawal of continuing financial support, which contributes to the strong association between single parenting and poverty. A major complaint of aggrieved non- custodial parents (who are usually fathers) is that their access to their children is made difficult by the custodian's outright refusals or 'explanations' that the children are unavailable for a number of reasons. These and other forms of unresolved inter-parental conflict are damaging to children, with litigation being the extreme measure of such conflict.

The concerns are not unique to Australia. In the United Kingdom, the Law Commission's Review of Child Law addressed them in 1988, and sought to rationalise and simplify the various laws which affected children, and to ensure that the law operated as far as possible to advance their welfare. A major outcome of the English inquiry was the passage of the Children Act, which comes into operation later this year. The complexities of the division of power between States and the Commonwealth in Australia prevent a consolidation of all laws relating to children. However, the Council's discussion paper attempts to raise a number of issues, suggest solutions, and seek public comment on legislative and other changes in an attempt to maximise the outcomes for children within the family law system.

The Role of Family Law

The Family Law Council's discussion paper makes reference to the fact that issues relating to post-separation arrangements for children are complex because of a combination of factors, including changing sex roles and views of the importance of marriage, cultural pluralism, research findings on child development and no-fault divorce law. Family law is obviously not the sole cause of negative consequences of marriage breakdown for children, and it therefore cannot single-handedly provide the solutions to these consequences.

However, the paper allows that the framework provided by the law may serve to encourage what it describes as 'fair and harmonious resolutions' or, alternatively, can be used to 'promote hostility and deepen family divisions' [page 7]. On this basis at least, it needs to be examined closely and critically, as should non-legal remedies such as effective parenting education and improved access to existing mediation and counselling services.

Examination of such statistics as there are from the Family Court and various alternative dispute resolution services show that, apart from possibly some initial advice from lawyers, most separating parents do not come to the attention of 'specialists'. Presumably they manage as best they can, despite the initial turmoil that usually accompanies the early months after separation.

It must not be presumed, and the paper does not suggest, that marriage breakdown is universally damaging to children, or that existing laws and practices are inevitably doomed to fail. Indeed, it comments on the complexity of assessing whether the present laws are working well or not, and more specifically, whether any alternative may be an improvement.

Contradictions

The topic of children, the law and parental separation has been beleaguered by a good deal of emotion and a number of contradictions. The Family Law Council's discussion paper implicitly refers throughout to the former, and addresses the latter at some length.

One conundrum is that the legal system, at least in Australia, plays a direct role in the determination of arrangements for children in a very small percentage of cases, as only between 5 and 10 per cent of divorcing parents have a custody or access decision imposed on them by a judge. The paper accepts that the adversary system will need to be available for intractable cases, particularly where there are allegations of abuse, or the safety of a child is directly involved. However, it argues that in some difficult disputes where there may now be an assumption that an authoritative decision is necessary, a negotiated outcome will be possible.

Despite the infrequency of litigation involving children, parents are (quite properly in the context of the current law) advised by their lawyers on their choices and chances in relation to their children on the basis of principles extracted from case law. The terminology used is invariably that of 'custody' and 'access', 'rights', 'powers' and (less commonly) 'responsibilities'.

There are obvious difficulties for practitioners who are trained to protect a client's interests and who cannot ignore the possibility that litigation will eventuate, while working within a system which also emphasises conciliation and the avoidance of disputes where possible. The 'flow on' effect (Moloney 1986) of the statistically rare cases may therefore have an unjustifiably heavy impact on the thinking of 'ordinary' parents. Their parenting arrangements may thereby be influenced by the unusual, particularly those extreme cases reported in the media. Similarly, the views of lawyers and judges who are principally involved in litigation over children, may reflect their perceptions that disputes are rampant and people require direction in a disproportionate number of situations.

At one level, the low litigation rate may suggest that the system is as good as it can be, given that the courts must always be available to resolve particularly difficult disputes. This view is canvassed in the discussion paper and rebutted, and will be mentioned later in this article.

There is also a good deal of evidence that separating parents do not understand the meaning of terms such as 'joint custody' and 'joint guardianship', and therefore the nature of their responsibilities under present legislation is unknown (Weston and Harrison 1989). If this is a problem within the unified system operating in Australia, its drawbacks are magnified many times over at an international level because several different meanings are given to 'joint custody' in different jurisdictions.

The term may mean that parents share physical time with their children, or that they have equal responsibilities to make 'legal' decisions relating to them. Pleas by non- custodial parents for an entitlement to joint custody may therefore be difficult to interpret.

The discussion paper sets out the Family Law Act position which, since the referral of powers by the States, applies equally to nuptial and ex nuptial children. Under Australian law a parent with custody has the right to have the daily care and control of the child and is responsible for decisions concerning that care and control, while guardians have all powers, rights and duties except those concerning day-to-day care and control.

The Act also provides that unless a court order specifies otherwise (in the vast majority of cases) each parent is a guardian of their children and has joint custody of them. While this provision attempts to keep the parents' legal status in relation to their children unaffected by their separation, the emphasis on rights, powers and duties may be criticised for being proprietorial. The importance of terminology forms a central part of the paper and is discussed later in this article. Also questionable is the practicality of parents who are not living in the same household jointly sharing daily tasks in relation to their children.

The second contradiction is inherent in the nature of the 'clean break' principle in family law. The philosophy behind this is that, where possible, courts should make orders which will finalise inter-spousal financial relationships and avoid re-litigation. Although (particularly since the 1988 amendments) the Family Law Act has clearly demonstrated that the clean break is restricted to adults, this has been interpreted by some parents as justifying or even encouraging their refusal to allow access or to withdraw from their children after separation (Harrison 1988). The messages provided by no-fault divorce stress the fact that post-divorce circumstances should not be burdened by the past.

Another contradiction is that parents now make the major decisions about their children and yet, as discussed earlier, circumstances for those children are often far from optimal. It may be asked why this occurs, and also whether more restraints should be placed on parents, or more guidance provided to them after separation.

Language of the Law

Reference has already been made to the fact that 'joint custody' has no standardised meaning outside Australia, is not understood by many parents in this country, and within the Family Law Act definition is probably an impractical concept in any event.

On the broader issue of language and the message various words convey, the discussion paper concludes that terms such as custody and access not only originate in the notion of ownership of children, but the retention of such terms also perpetuates that notion. The Council refers to Elkin's (1975) suggestion that it was time then to question the linguistic symbols of family law, and to Ryan's (1989) Canadian work which notes the criminal and property law origins of existing terminology describing relationships between separated parents and their children. Reference is also made to a study in which non-custodial fathers associated legal phrases such as 'custodial parent' with power, dominance, usefulness and value, and saw 'non- custodial parent' in terms of high levels of inequality (Patrician 1984). As Adele Horin (1991) commented in a newspaper article on the topic, 'to be the parent with custody sounds like a powerful place to be'.

From that viewpoint, the language relied on now has the capacity to increase tensions, minimise the role of a parent and shape the range and types of available solutions involving children. It can strengthen notions of winning and losing, and substantially devalue the contribution of the parent with whom the child spends the least amount of time.

The importance of terminology has also most recently been recognised in the legislation of various jurisdictions, including Britain, Maine, Florida and Washington, all of which have consciously, albeit differently, moved away from custodial labels.

The ultimate dilemma is that in most circumstances children spend more time with one parent than the other after separation, and most commonly they live primarily, even solely, in their mother's household. Pre-separation circumstances and societal expectations contribute to the fact that in countries ranging from Australia, Sweden and the United Kingdom the mother is the sole or major post- separation custodian in 85 to 90 per cent of all cases. The discussion paper sets out clearly the fact that the issue of where a child lives has constantly been linked to issues of parental status. Non-custodial parents may be excused for seeing the other parent as having virtually exclusive physical and legal control over their children, despite the fact that the law does not intend to effect such a result.

Legal presumptions or requirements that custody (however defined) should be jointly held by both parents resulted from attempts to compensate non- custodial parents, and for some were seen as a panacea. The paper concludes that this attempt has failed, and cites the 1988 Californian repudiation of its joint custody presumption as involving a recognition that such provisions neither change actual behaviour nor improve parent--child relationships.

Patterns of Parenting After Separation acknowledges that changing language which has a certain level of familiarity and legal significance (even if only to a coterie of people, some of whom may not actually understand it) is difficult and takes time, but argues that the basic question is 'whether or not our linguistic symbols are helpful or harmful to the parents and children they are meant to serve' (p.31), and if the answer is that they are harmful, they must be changed.

Discussions of the role of terminology and the 'classic' custody--access model are followed in the paper by a summary of the various legislative attempts to encourage joint custody, or of presumptions used to guide parenting arrangements --- such as friendly parent provisions and primary caretaker preferences which are found in the laws of several American states. These guides and presumptions are criticised on the basis that they retain the view that one parent is primary and the other secondary, and that resolutions of who is the better parent do not involve a search for ways in which the child's future relationship with both parents may be faced.

Parenting Plans

The preferred option of the Family Law Council's discussion paper is to encourage the making of parenting plans which would use everyday terminology, involve parents themselves in setting out a working document with which they could address the future needs of their children, eliminate or at least minimise continuing conflict, and therefore improve the chances of cooperative parenting.

An analogy can be found with marriage contracts, which are often recommended, if for nothing else than the opportunities their formulation provides to define and isolate future topics of discontent or difficulty, which may prevent disputes arising later when they could be damaging to the relationship. Sceptics consider that such exercises also provide litigation opportunities, but the issue has not been explored sufficiently for a conclusion to be reached.

The use of parenting plans has evolved from attempts to resolve the sole versus joint custody debate, but it should be seen in terms of what is best for children, not what is the fairest outcome for parents (although the two may often be congruent). Such plans may be formulated after mediation, conciliation or even litigation, or may come into existence quite independently of these. One of the strengths of parenting plans is seen as their shifting of the focus from criticisms of the other partner, based on his or her past behaviour, to present and future statements about how each will continue to perform their parenting roles.

Existing provisions in the Family Law Act contain the seeds of a parenting plan. Divorce applications in marriages involving dependent children require information relating to their proposed arrangements to be provided. Information relevant to the children's housing, health, education and maintenance should be brought to the court's attention when the application is being considered. Where judges doubt that the arrangements made for the children are appropriate in the circumstances the divorce proceedings may be adjourned until sufficient details are provided by way of a counselling report (section 55A(2).

The discussion paper suggests that with some adjustments this information could form the basis of a parenting plan, and even if litigation were to eventuate, the information contained in it would allow the court to concentrate on arrangements and responsibilities agreed, at some time, by the parents themselves. As the plans would be couched in everyday terminology, any eventual judgements could also avoid traditional legal language, and be more meaningful for the families concerned.

Conclusion

The issue of reform of the laws which affect both parents and children after separation fits in well with the theme of changing family values highlighted in this issue of Family Matters. As knowledge about the effects of conflict and parental loss on children increases, so does the need to ensure that laws and services designed to maximise the welfare of children during parental upheaval are consistent with known outcomes. Family law has never been immutable, and in order for provisions to be at their most effective, they need to reflect, and perhaps even pre-empt social change and community values.

However, values are often difficult to ascertain and may be diverse and inconsistent. For decades the welfare of children has been espoused by legislation as a paramount issue, whether abuse or neglect or divorce- related matters are relevant. The means by which this welfare may be best advanced or protected is more problematic. The disposition of children after marriage breakdown has traditionally been seen as falling into the categories of who has custody and who has access, and this is supported by the terminology of the Family Law Act.

Patterns of Parenting After Separation argues that the time has come to challenge these categories and question the role of existing laws and the viability of alternatives.

The discussion paper has been distributed to interested individuals and organisations with a questionnaire which readers are asked to complete. Although the closing date for submissions was 26 July, late contributions will be accepted, as the Family Law Council is anxious to obtain as many views as possible on the topics raised.

Reactions to the discussion paper will be extremely interesting. Some respondents may view the Family Law Council's recommendations as being radical and original, others may criticise them as being too mild and uncritical, while a group will probably consider them unnecessary, on the basis that the system is as good as it can be and/or the suggested proposals will effect little real change. The Council's final report will be directly influenced by the extent of the interest in the discussion paper and the nature of the responses received. It is expected that the Joint Select Committee will also be interested in the paper and the acceptance or dismissal of its recommendations by constituents.

References

  • Edgar, D. (1986), Marriage, the Family and Family Law in Australia, Discussion Paper No.13, Australian Institute of Family Studies, Melbourne.
  • Elkin, M. (1975), 'The language of family law is the language of criminal law', Conciliation Courts Review, Vol.13, No.1.
  • Harrison, M. (1988), 'Continuous parenting and the clean break: the aftermath of marriage breakdown', Journal of Social Issues, Vol.23, No.3.
  • Horin, A. (1991), 'New clues to tracking down missing fathers', Sydney Morning Herald, 14 May.
  • Moloney, L. (1986), 'Children and the Family Court: some limitations of the present system', Paper presented to the Second Australian Family Research Conference, Melbourne.
  • Patrician, M. (1984), 'Child custody terms: potential contributors to custody dissatisfaction and conflicts', Mediation Quarterly, Vol.3.
  • Richards, M. (1991), 'Children and parents after divorce', Paper presented at the Seventh World Conference of the International Society on Family Law, Opatija, Yugoslavia.
  • Ryan, J. (1989), 'Parents forever: making the concept a reality for divorcing parents and their children', Report submitted to the Department of Justice (Canada).
  • Weston, R. and Harrison, M. (1989), 'Divorced parents' understanding of their rights and responsibilities towards their children', Paper presented at the AIFS Third Family Research Conference, Ballarat.

AIFS Fellow, Margaret Harrison, is a member of the Patterns of Parenting After Separation Committee which prepared the discussion paper. Copies of the paper are available from the Director of Research, Family Law Council, Robert Garran Offices, National Circuit, Barton 2600 ACT.