PARENTING DISPUTES AND A RETURN TO LEGALISM

In the United States, there is a battle for the hearts and minds of the separated and divorced and for the policy makers who make recommendations about principles that guide decisions about post-separation parenting. In its simplest form, this battle is over whether the breakdown of a marriage is best understood and dealt with as a legal event with legal consequences, or whether it is more useful to see marriage breakdown from an emotional and social point of view as the ending or restructuring of human relationships.

The battle lines have been drawn up by Fineman (1988), who regrets that the 'dominant discourse' about divorce and its aftermath has shifted from the legal to the social/emotional. For Fineman it is a battle ground because she sees no place for the simultaneous articulation of both viewpoints. It is an important battle because an acceptance of Fineman's view would have significant implications for the way in which children experience marriage breakdown and for the sort of ongoing parenting they receive after separation and divorce.

The battle is not yet a focused one in Australia. Perhaps it will not become so. However, Fineman's conclusions are endorsed by Astor and Chinkin (1992) in the first comprehensive review of dispute resolution in Australia. Astor and Chinkin support Fineman's position in the introductory chapter of their book and in the chapter devoted to family disputes.

It is important that Fineman's call for a return to an exclusively legalistic approach to the fate of the children of separation and divorce be very carefully considered. It is especially important that gains made by children, informed in part by a growing appreciation of the rights of the child (Hodgson 1992) and the increasing body of research literature on those factors which benefit children of separated parents, are not lightly abandoned. It is argued that Fineman's simplistic legal principles are just as inappropriate as the equally single-minded psychological principles offered by workers such as Goldstein, Freud and Solnit's (1973) Beyond the Best Interests of the Child, proffered in the first flush of social science enthusiasm for new brands of family law in the early seventies.

Like Goldstein et al, Fineman's wish for a return to a single criterion on which post-separation parenting decisions might be based, arises, at least in part, out of a concern for the vagueness of the 'best interests of the child' principle. This principle has dominated thinking in family law for many years. Fineman notes that historically, it 'created problems for the legal system ... because it [the best interests test] was indeterminate'. She recalls that difficulties in child disposition decision making have also been exacerbated by the removal of fault from most divorce legislation. No longer can children be awarded to the parent judged to be the 'innocent party.' Fineman's solution to the perceived problem of inadequate legal predicability is to propose a single 'primary caretaker rule' under which the person who can show evidence of having 'day to day care during the marriage should get custody'.

Fineman's proposal for a primary caretaker rule comes after a lengthy analysis of how the helping professions have been effective in altering public perceptions with respect to both the procedural and substantive issues in family law. The principal procedural changes include the increased acceptance (and at times even the mandating) of mediation, conciliation counselling, or some related process.

Alongside this has grown an increasingly sophisticated understanding of the emotional impact of separation and divorce, how this affects children and how it influences decision making about future parenting. Fineman is clearly irritated by what she sees as the social workers' grab for power. (Throughout the article, the term 'social worker' is used interchangeably with mental health workers and other members of the helping professions. On one occasion, the term 'do-gooder' is thrown in for good measure). According to Fineman, the helping professions have mounted an 'attack on the nature of existing rules and decision making institutions'. 'Social workers', she suggests, 'have a professional bias in favour of a specific substantive result. That result benefits their profession.'

In contrast, Fineman asserts that 'divorce and custody decision making has traditionally been the preserve of legal institutions.' The implication throughout her article is that if the 'attack' of the helping professions could be blunted or reversed, then the 'discarded legal discourse' could be reinstated and, at the same time, an acceptable level of predicability could be brought back of legal processes. Fineman admits to 'undeniable problems associated with the adversary system' and to the fact that 'the behaviour of attorneys in custody cases has at times been outrageous'. She argues that it is these deficiencies which have given the helping professions a foothold via the successful promotion of alternative decision making procedures. Having established that foothold, she believes that the helping professions have 'redefined' separation and divorce as an emotional and psychological crisis which needs psychological rather than legal intervention. The need for this 'redefinition' would be considerably reduced if a legal principle with a high level of predicability of outcome could be found. How would this be achieved?

Under the new rule: 'The primary caretaker test assumes that bonds exist between the primary caretaker and the child; they are evidenced by the caretaker's sacrifice and devotion. The test also assumes that the child reciprocates this devotion.' In this way, Fineman is able to dispense with any expert evidence which might go to issues of quality of care and, it would seem, any reporting from expert witnesses on how the child(ren) might perceive the situation. 'In determining custody,' she asserts, 'there should be no speculation as to the quality or extent of emotional bonding between parents and children.'

Underpinning this approach is the view that an award of custody is a 'reward for past caretaking behaviour'. There is no explanation of how such a reward would always be in the best interests of the child. Indeed there can be no such explanation because any qualitative analysis of the parent-child relationship is deemed inappropriate. The reward of which Fineman speaks is not for the child but for the parent. The model has no room for consultation with the child. Rather, the model returns us to the sort of thinking which supported the 'custody to the innocent spouse' philosophy prominent in the days of fault-oriented legislation. Though perhaps a little more benign in its execution, this is an orientation which once again objectifies and depersonalises the child.

Once locked into her approach, Fineman's language has a circular and self-fulfilling quality to it. 'The primary caretaker standard', she suggests, 'does not ignore the less essential, secondary contributions of the other parent: they are rewarded by the establishment of visitation periods with the children'. Her approach also invites a continuation of the traditional division of labour and perceived parenting roles between the sexes. In a footnote attached to the above statement she declares: 'It is my position that there are qualitative differences between the contributions of primary caretakers (typically mothers) and primary earners (typically fathers).' To reinforce her notion of custody as a reward for sacrifice, she adds: 'The income contribution fathers make for their families cannot be classified as sacrifices.'

Admittedly there is a neatness in Fineman's solution to a problem which has dogged family lawyers in Australia for almost 20 years. There is a problem of predicability. Within family law, judges exercise wide discretion. Under the 'primary caretaker' rule, lawyers could be considerably more confident about the advice they gave. The results of most cases could be predicted on the basis of easily obtained information - information which Fineman suggests could normally be assembled in no more than an hour. Furthermore, as in the days of fault-oriented legislation, cases in serious dispute could once again be argued out on 'the facts' of the case. Once again (though this is not a part of Fineman's argument), the adversarial system could be seen to have regained proper place.

Within Fineman's model, of course, the relevant facts would no longer relate to sordid matters like whether a hapless spouse was seen departing from somebody's flat at 6.30 am. Instead, the information on which witnesses could submit material and be examined would relate almost entirely to the amount of time the child(ren) spent with each parent. This is the sort of stuff which would warm the adversarial heart. 'Your Honour the witness claims that Johnny spends six hours a day in the presence of his mother. But the witness admits she only drops in on Mrs Smith about once a week!' Further, as already noted, in Fineman's brave new (or old) world, there are no psychologists or other such professionals who might muddy the waters with notions as vague as children's perceptions, needs and attachments. There is no assessment of the quality of parenting on offer. There is no attempt to come to terms with the unique way in which a particular family operates or the unique matrix of relationships that exist within it.

Earlier in her article, Fineman makes a number of important observations about past dangers, excesses and mistakes perpetrated via the helping professionals and the social sciences. She draws attention to the danger of private value systems masquerading as science. She notes some of the more naive expectations originally associated with no fault legislation - the view, for example, that all parenting disputes could be settled amicably; and the unrealistic (and sometimes dangerous) claims made on behalf of mediation. She points to the limitations on predicability of outcome regarding most parenting decisions as well as some of the excesses of the 'joint custody' movement. (On this last issue it should be noted that like Astor and Chinkin (1992) Fineman incorrectly confuses arguments about the benefits of shared parenting with arguments in favour of a presumption of joint custody.)

In the final analysis, however, Fineman's motivation for 'the adoption of a radical albeit legalistic test for resolving custody cases' seems to stem from three related sources: a rejection, based on her analysis of how social workers operate, of the notion that the helping professions have anything legitimate to contribute to post-separation decision making; a desire to return the legal system to the status she believes it once enjoyed; and a belief in the efficacy of a high level of predictablity in the resolution of post-separation disputes over children.

It is suggested that for children, and ultimately for their parents, Fineman's approach represents a reversal of hard fought gains. It also runs counter to Australia's increasing acknowledgment of the importance of the rights of the child.

CHILDREN'S RIGHTS MOVEMENT

Hodgson (1992) has provided a very useful analysis of the tortuous path trodden over many years by those who have advocated greater recognition of the rights of the child. For many, the years of effort culminated in the Convention on the Rights of the Child adopted by the United Nations in 1989. The convention was ratified by Australia in December 1990, though the January 1993 deadline for reporting on its implementation has already been exceeded. Hodgson notes the apparent paradox alluded to by Jean Floud (1976) 'that children have far fewer legal rights although their needs and interests may be far greater than those of adults'. Hodgson concludes his paper with a sobering observation: 'The greatest challenge to the children's rights movement may lie ahead, in terms of securing the political will necessary to effect a realignment of priorities and values. Australian children's rights advocates may find themselves competing for scarce resources ...'

One of the resources needed by children of separating and divorced parents is the continued legal work required to articulate how, in a given culture, the rights of children are exercised within a family structure. Clearly, a further resource required by children is that of legal advocacy. In practice, the two would usually go together. In addressing the issue of children's right to legal representation, Rayner (1992) has pointed out that children are not required to be treated with respect because, 'although they have the same basic freedoms as adults ... they cannot in fact enforce them'. Rayner also asks whether lawyers can in fact be child advocates. She concludes that they can be, but only after some significant adjustments are made to normal legal practice.

Rayner notes that lawyers who act for children quickly become aware of the many conflicts of interests this entails. 'Do children have rights? If they do, can they be overridden by their ''best interests''. To what extent do the wishes of parents ... impact on children's instructions?' Rayner is clear that legal advocates for children are not experts in child welfare. Rather they can 'at best learn how to find out what his or her wishes are, adduce expert and other evidence which might persuade a court as to the best decision to be made, and challenge stereotypes and assumptions about their clients and their instructions.

Rayner suggests that one reason there are few legal advocates for children is the general low status that this work attracts. Another is the low level of awareness of the very special skills required for this work, demanding as it does far more than competence in black letter law. The problem is a circular one. The low perceived worth of child representation in the eyes of the courts and the profession is simply not conducive to the building up of a body of experts and a body of expertise in the area. Indeed some (for example, Broun 1985) argue that within the legal adversary system, there is simply no place for the separate legal representation of children.

The low legal status or sometimes no legal status of children in court proceedings is further supported by a deep- seated perception of children as the property of their parents. The Family Law Council (1992) report, Patterns of Parenting after Separation, drawing on the work of Ryan (1989) and others, has pointed to the proprietorial nature of the terms custody, guardianship and access, traditionally used to define the legal relationship between children and their parents. As the Report notes, the terms reflect a tradition whereby in nineteenth century British law, children were held to be the property of their fathers; and where in Roman times, fathers effectively held over their offspring the power of life and death. The adoption of the UN Convention on the Rights of the Child demands that we move beyond a perception of children as property, so often implicitly evidenced in the proceedings which accompany family law applications. The Convention requires us to take the question of children's rights more seriously than we have in the past.

Some opponents of the continuing promotion of children's rights suggest that it will inevitably lead to the erosion of family values. The argument here is a complex one, but most commonly reduces itself to concern about parental powers and parental authority. This argument highlights a legitimate concern that reasonable and appropriate parental authority may be further eroded by the state. Rayner, on the other hand, suggests that parental powers need to be seen as 'duties to be exercised for their children's benefit'. Similarly, she sees parental rights as rights to perform these duties without unnecessary State supervision.' These powers and rights, she adds 'are not absolute: even parental rights to control a child based on traditional custody 'rights', wane and finally are no more than 'the rights to give advice' as the child acquires that ability'. 'It follows at Common Law', Rayner continues, that 'children have the right to participate in all decisions that affect them intimately. This is especially apposite in decisions which will affect where and with whom a child lives (such as guardianship/custody/access decisions).'

Rayner's remarks appear to be echoed in the interpretation of the United Kingdom Children Act (1989) offered by Sir Alan Ward of the English High Court of Justice and reported on by Harrison (1992). According to Sir Alan Ward, a principal characteristic of the Act is the movement away from parental right to parental responsibility. Consistent with this approach is the notion that divorced and separated parents are fully responsible (and consequently have full rights) with respect to their children when they have them in their care. It is therefore not surprising that the Children Act has also modified the traditional language of family law. There is really no place in its thinking for the notion of a parent as a mere visitor who has 'access'. Further, couched within this less proprietorial language, the Children Act endorses the view that 'such orders as are considered necessary, are only made after a court has found itself satisfied that they will contribute positively to the child's welfare' (Harrison 1992).

Harrison also reports on a paper by Judge O'Donovan, a Family Court Judge from New Zealand, who at the same conference - the Fifth Family Law Conference in Perth - suggested that 'future laws relating to families should be expressed in language more appropriate to the needs and aspirations of modern families.' By way of contrast, the response from at least one Australian Family Court Judge on the issue of more moderate language, was less enthusiastic. A paper by Justice Baker suggested that 'it matters little how you dress up an order for custody following a bitterly contested hearing. The person who has the child on a day- to-day care and control basis will clearly perceive that they have won, while the person having visitation or access rights will regard an order in favour of the other spouse as a loss' (Harrison 1992).

Few would challenge Justice Baker's observations that the litigants at the end of a bitter custody battle perceive the result, regardless of how it is framed, in terms of winning and losing. The broader question however, is what socially sanctioned norms permit an acceptance of the view that children may be deemed to be 'won' or 'lost', whether as a reward (in Fineman's terms) for effort or sacrifice, or as a prize for being able to establish some other claim to primary ownership. More broadly still, as Edgar (1992) notes, 'it is important to look at how a particular society structures its money, its political laws and social rules to use children instrumentally for the broader social purpose defined by the age.' In this sense 'the legal system is crucial in defining adult society's view of children'. Yet, observes Edgar, the law sees children 'as a category regardless of their individual abilities and this can violate children's rights of autonomous action.'

Edgar draws attention to a series of European reports on Childhood as a Social Phenomenon (Qvortrup 1987) which, amongst other things, argues that: 'The lack of valid information about children ... illustrates the adultism of our views of children.' The term 'adultism' is a striking and challenging one. It is a challenge to think about a world in which children's undoubted need to be educated, guided and socialised was balanced by a commitment to listen carefully to their responses and their views. It is a challenge to speculate on the changes this commitment would bring to an area such as family law.

GIVING CHILDREN A VOICE

It is suggested that were we to listen more carefully to the voices of children, changes such as the following would probably occur.

• First, it is likely that more research on the effects of separation and divorce and on the efficacy of subsequent parenting arrangements would be conducted from the children's point of view. A research report by the Family Court of Australia (McDonald 1990) suggests that: 'While adult views on children's adjustment and the role of post- separation access have been widely canvassed, children's own feelings about divorce and their perceptions of current access arrangements have rarely been sought in any depth.' (There are of course important exceptions to this generalisation, such as the work of Ochiltree and Amato (1985)). The Family Court report concludes with the following observation: 'Children's wishes regarding future relationships with both separated parents are often disregarded by adults who conclude that they are cognisant of their children's feelings. Research to date does not support that view. Parents and professionals alike need to be reminded that children are able to express their needs in a logical and insightful manner.'
• Second, listening carefully to children would mean that, at a minimum, family mediators would always have an ear open for discrepancies or inconsistencies in separating couples' perceptions of the needs and wishes of their children. If discrepancies persisted, the mediator would seriously consider ways of involving the children and or their representatives directly in the process. The mediator may have the skills to do this or may need to cooperate with someone who does.
• Third, consistent with the issues raised earlier and consistent with the concluding comments of the Family Court research report, listening carefully to children would mean that when litigation over their welfare ensued, they would be competently represented. Such a change offers a fundamental challenge to the strength of our commitment to children's rights in family law. There is a question of resources; there is a question of the status of the legal representative and a commitment to his or her specialised training; there is a question, still largely unresolved, of how a separate representative navigates through and between his or her adversarial 'opponents'.
• Fourth, listening carefully to children would mean that children would have the right to be present at a mediation or court hearing when their future was being discussed. In both venues, there are times when issues with which children should not be burdened need to be raised. At those times children could be requested or required to leave. On the other hand, an orientation which starts with an acceptance of the presence of children as a right, would place the onus on parents, mediators, lawyers and judges to consider carefully the extent to which material deemed inappropriate for them to witness, is truly being raised to advance the welfare of the child. There is little doubt that at present (perhaps less so than in the past), a great deal of destructive material can still be debated and admitted into evidence in the name of 'the best interests of the child'.

It is of course easy to dismiss as fanciful and impractical much of what children say they want. Many studies, including that of McDonald (1990), have found that a large number of children wish for the reconciliation of their parents. In our individually oriented culture, conventional wisdom would suggest that this is something adults must decide upon, free from the pressures of their children. But McDonald's research also echoes the findings of numerous other studies in its conclusion that more than half the children interviewed express a wish to spend more time with their 'other parent'. The vast majority of the children in McDonald's study reported that they enjoyed access, and a majority wanted the access time to be increased. Again, it is easy to dismiss such wishes as understandable but impractical. But if we engage in such a dismissal, we need to reflect on the standards and values by which we come to such a conclusion.

The issue of standards and values which inform our decision making, returns us to the question of 'dominant discourse' raised by Fineman (1988). Fineman regrets that in family law, the dominant discourse is informed more by the behavioural sciences than by the law. But perhaps the time has come to reflect on the dominant discourse less in terms of its professional assumptions and more in terms of its adult versus child orientation. Edgar (1992) points again to the work of Qvortrup and the European Group in this regard. They accept that in our culture, childhood represents a transitional phase between ignorance and dependence, and autonomous adulthood. Their concern is that the 'transitional and anticipatory view makes adulthood the most important part of a generational structure and has the effect of making children seem passive, rather than an active and important group in their own right.'

It is suggested that if children are genuinely to be seen as an important group in their own right, then Fineman's or any other view which sees custody as a reward and access as a sort of second prize, is no longer acceptable.

BEYOND CUSTODY AND ACCESS

Research that aims to understand more clearly the consequences of parental separation from the child's point of view represents an attempt to alter an 'adultist' bias and give children a genuine voice. But the voices of children will inevitably be a reflection of the manner in which the questions are put to them by the adult researchers. Thus the full title of the Family Court Report by McDonald is 'Children's Perceptions of Access and the Adjustment in the Post- Separation Period'. The questionnaires which informed the research, speak of 'custodial parents', 'visiting fathers (and mothers)', 'having access' etc. The research is worthwhile and illuminating. But the information it elicits is different from information which would have been derived from questions about, for example, what it was like being a son or daughter of a mother no longer living with the child's father, or to a father who no longer lived with the child's mother; or questions about how much time mum and dad got to spend with their child(ren), and how it worked out, or how it might have worked out better; or questions about how children would rearrange their families if parents separated.

There is a need for more truly child-oriented research to discover more about how children experience separation and divorce. There is a need also to respond to the reality that in the decision making surrounding parenting after separation, many children remain disenfranchised, with no avenue available by which their views may be adequately listened to, understood and represented.

Also disenfranchised by the structural constraints are many of the 'non custodians'. In most cases these are the fathers. In a study of attitudes to terms such as 'non custodian' and 'access', Patrician (1984) found that fathers reacted to these words very negatively. Most non-custodian fathers perceived their situation as inherently unfair and felt that the terms describing their status exacerbated any conflict between themselves and their former spouses.

Another research report recently published by the Family Court (Gibson 1992) found that a substantial majority of fathers found access periods too short and too infrequent. Most wanted more involvement, just as a majority of the children in McDonald's sample wanted more time with their fathers. Gibson suggests that 'the overwhelming theme that comes across in this sample of men is that they would like to have or were sustaining a relationship (with their children) in the face of some major obstacles.' In her introduction, Gibson also notes, that 'for years, the male perspective in the parenting literature was largely ignored, due to a social perception that it is fundamentally a mother's role.' The reduction of the father's role, in many cases to that of a visitor, is consistent with Gibson's observation.

It is clear that the custody/access model, which has its origins in perceptions of children as property - passive and with no voice of their own - generally came to favour the 'mother as owner' solution because as nurturers fathers were until recently all but discounted. Moloney, Marshall and Waters (1986) have provided a brief historical overview of the changes in attitudes which eventually saw mothers 'favoured' in the courts in place of fathers. There are many ironies in this sequence of events and some would no doubt see a sort of poetic justice in the final outcome.

Nonetheless, we need to move beyond male-female arguments and accept as a starting point that each of us has something unique to contribute to the parenting of our children. Our maleness and femaleness is an important expression of what we have to offer but it nonetheless represents only one dimension. Increasingly, it is suggested, it makes little sense to construe post- separation parents in terms of an inferior and superior status.

CONCLUSION

This paper cautions against the adoption of any framework which might advocate a simple criterion upon which future parenting arrangements for children of divorce might be based. The paper devotes some space to Fineman's article in this regard because it was published in a prestigious journal and because it offers a superficial appeal to a profession which no longer has clear precedents at its disposal in this difficult area. The paper is equally sceptical about unidimensional psycho-social theories and cites the earlier work of Goldstein, Freud and Solnit as an example of this.

The paper does not engage with Fineman over her total rejection of the validity of social and behavioural science input. Rather it takes as a starting point that the benefits of a cooperative approach between these disciplines and the law are obvious. The paper suggests that the law has a great deal to contribute by more clearly articulating the extent of children's rights within family law and by adopting a far more positive advocacy role with respect to children's needs and wishes. The paper agrees with Rayner's position that such advocacy must necessarily be in conjunction with those who have expertise in child and family welfare and development.

The paper argues that proprietorial notions of parent are inconsistent with developments in the field of children's rights and that proprietorial language concerning children is no longer appropriate in family law. An important challenge ahead is to become more aware of our own 'adultism' in this field, to listen carefully to what children are saying and to change practices to take greater heed of children's voices.

At a practical level, it is clear that many children want to spend more time with 'non custodians' (usually fathers) and many fathers want greater involvement with their children. A move away from the custody/access model to a greater sense of sharing the parenting, is also consistent with these aspirations. Although the Joint Parliamentary Committee on Family Law has not endorsed a change of custody/access terminology at this stage, it has recommended that the fundamental changes which have accompanied the Children Act in the United Kingdom be carefully monitored. Hopefully this monitoring will continue to take place.

REFERENCES

• Astor, H. and Chinkin, C. (1992), Dispute resolution in Australia, Butterworths, Sydney.
• Broun, M. (1985), The legal and ethical implications of acting for children. Paper delivered at Family Law Workshop, Centre for Commercial Law and Applied Legal Research Monash University, April 20 and 21.
• Edgar, D. (1992), 'Childhood in its social context: the under socialised child?' Family Matters, No.33, pp.32-35.
• Family Law Council (1992), Patterns of parenting after separation, AGPS, Canberra.
• Fineman, M. (1988), 'Dominant discourse, professional language, and legal change in child custody decision making', Harvard Law Review, (4), (101), pp.227-273.
• Floud, J. (1976), 'A right to education: a test case for a theory of children's rights', Archiv fur Rechts - und Sozialphilosophie, (62), pp.319-325.
• Gibson, J. (1992), Non-custodial Fathers and Access Patterns, Research Report No.10, Family Court of Australia.
• Goldstein, J., Freud, A. and Solnit, J. (1973), Beyond the Best Interests of the Child, Free Press, New York.
• Harrison, M. (1992), 'Children and parental responsibilities', Family Matters , No.33, pp.40-41.
• Hodgson, D. (1992), 'The historical development and 'internationalisation' of the children's rights movement', Australian Journal of Family Law (3), pp.252-279.
• McDonald M. (1990), Children's Perceptions of Access and Their Adjustment in the Post-separation Period, Research Report No.9, Family Court of Australia.
• Moloney, L., Marshall, A. and Waters, P. (1986), 'Suspension of assess: attitudes which have influenced the courts', Australian Journal of Family Law (1) pp.50-66.
• Ochiltree, G. and Amato, P. (1985), The Child's Eye View of Family Life, Australian Institute of Family Studies, Melbourne.
• Patrician, M. (1984), 'Child custody terms: potential contributors to custody dissatisfaction and conflicts', Mediation Quarterly, Vol.3.
• Qvortrup, J. (1987), Childhood as a Social Phenomenon: Introduction to a Series of National Reports, European Centre, Vienna.
• Rayner, M. (1992), 'Children's voices, adults choices: children's rights to legal representation', Family Matters, No.33, pp.4-10.
• Ryan, J. (1989), Parents Forever: Making the Concept a Reality for Divorcing Parents and Their Children, Department of Justice, Canada.