The legal balance


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Family Matters article

December 1991


After parents separate, children can end up being treated like part of the matrimonial property, as something to be fought over in terms of who has the greatest right to ownership. That mothers most commonly get custody is seen to be the fault of a sexist family law that ought to be reformed to reflect better the roles played by mothers and fathers in parenting. This article looks at the law and parenting after separation. The author argues that the law should look to separating parenting matters from family matters.

Family law reforms in the United States, Great Britain and Australia, particularly the enforcement of higher child support, has brought under scrutiny child custody and the principles underpinning its determination.

Complaints that laws favour women have led to calls for reforms to redress the perceived bias. On the other hand, in California, the presumption of joint physical custody has been amended after criticism that it did not serve the interests of children, and did little to change parenting practice in most cases. In the sometimes heated debate about gender and the law, it is easy to lose sight of the culture, which has a bearing on how children are reared.

In Australia, patterns of parenting after separation have been the subject of a recent discussion paper by the Family Law Council. Concern about how children are brought up, and the responsibilities of family law in these matters, has been expressed in a number of ways. These may be loosely grouped under two headings: those stemming from concern about the welfare of children and the law's role as protector, and those stemming from apparent infringements of parents' rights and the possible bias of the law towards one parent or the other.

From the children's perspective, there are four main concerns: that children's wishes and needs may be overlooked; that too often their relationship with their father is weakened; that they are the focus of parental dispute and are relatively powerless to disengage themselves from this conflict; and that, until recently, in most cases they lost the financial support of a non-resident father. These issues are regarded as obstacles in the path of the full and healthy development of children after their parents separate.

The other concern is that the parents' rights as parents are not respected after they separate, either by their former spouse or by the law. In these matters, opinions diverge along gender lines. Fathers say the fact that most children live with their mothers is evidence that the legal system is biased in favour of women that women's rights to continue living with their children take precedence over men's.

Fathers cite, for example, statistics showing that more than four out of five children are primarily resident with their mother. They also point out that the law has recently undergone a significant change with the introduction of a compulsory, standardised system of child support for non- resident parents, who are, of course, mainly fathers. In brief, it could be argued that fathers are double losers: they do not 'gain' custody of their children and they 'lose' the power to withhold support for their offspring while being forced to forgo a significant proportion of their income.

But mothers, too, have voiced concern that an effective public system of ensuring child support may erode their control over the children in their care. They cite the fortunately rare cases of abusive fathers as reason for refusing to allow fathers to pay support and thereby establish a 'moral' right to participate in parenting. Mothers also cite the difficulties in sharing and co-ordinating child rearing with a former spouse, especially immediately after separation when tensions may still run high. In these circumstances mothers consider that control and responsibility are better left to them.

These arguments rest on two premises. The first is that parents have rights to children analogous to their rights to share in marital property. These attitudes are expressed in terms of 'winning' and 'losing' custody, of having access to their children enforced by law. The second is that the legal system is responsible for the gender imbalance in parenting observed after parents separate, and that the law should be altered so that parenting reflects a 'true' balance between mothers' and fathers' competing claims.

Contracts, Rights and Marriage

It is not surprising that parental rights are prominent in matters regarding children. Marriage is a contract between two autonomous adults, commonly with profound economic implications for both. The repudiation of the contract through divorce requires fair decisions to be made on the rights to the material assets and liabilities of the partnership. When a married couple are without children, a most business-like approach is possible, with the law disinterested in any matters of conduct, personal hurt, guilt or moral obligation. This is the essence of the no-fault divorce law.

However, when a divorce involves a family, the unit of adult couple is fundamentally changed to a unit of adults with responsibilities for dependent children. Just as the original institution is altered, so are the implications for family law. As Andrups, Buchhofer and Beigert (1980) point out, family law is well- equipped to deal with childless marriages two adults, contracts, rights; it is not well- equipped to deal with families children, responsibilities, the protection of dependants.

The problems are that, in relation to marriage, the law must act as adjudicator for the competing claims of parents in matters of property; in matters of family (children), it must act primarily to protect dependants. This switch in emphasis is frequently expressed in terms of deciding in the best interests of the child and of using counselling and mediation to resolve parental disputes so that conflict is minimised and children are protected from any continuing conflict.

John Eekelaar (1990), in considering the law in matters of parents and children, asserts that a 'rights' framework is inappropriate, since it implies a common law assumption of two opposing adults making counter claims to time with, and proximity to, children. He argues that the law relating to parents and children should be more a matter of upholding parental responsibilities and protecting children.

But when parents are involved in resolving their own disputes as well as their children's future, these distinctions are hard to preserve. The frameworks of rights and responsibilities, sitting as they do side by side in family law, demand considerable intellectual and emotional gymnastics on the part of parents. At a time when their private lives are under scrutiny and they are coping with a serious crisis, parents are asked to keep matters of children and money separate. It is often a tall order.

Responsibility and Gender

In Australia and in other similar Western countries, the responsibility for children is rather specialised. Basically mothers are the primary day-to-day caregivers and fathers contribute more in the way of income to support the caregivers and children. This holds good even for Sweden where generous provisions are made for women and men to share employment and child care; even there, women take the primary responsibility for children. For example, they adjust their working life to care for children, and they work in sectors that best accommodate part-time work (Bradley 1990).

After divorce, Swedish women continue to take the primary responsibility for the daily care of children, with more than four out of five having the children living with them after separation (Agell 1991). In a now repealed law in California, where joint physical custody (children sharing residence between parents after divorce) was the presumption, the mother continued as the primary caregiver in a similar proportion to that in Australia and Sweden.

In the face of such international consistency, both before and after separation, it is difficult to ask Australian family law to be the tool of change in the norms of parenting. Moreover, although the law may enshrine ideals for parents, the Californian experience of pushing for joint physical custody and equal parenting suggests that when the law is out of kilter with common social practice, it does not necessarily serve as a useful educator or effective agent for social change.

The consistency across countries in the raising of children, noted above, shows that gender is important across national boundaries and across married and divorced families. Mothers have distinct advantages in establishing and maintaining close relationships with their children. This intimacy appears to have some biological basis, but it is also based on time and availability, which are very much influenced by society. The point is that across many societies, mothers are clearly favored culturally to become the primary caregivers, a situation that is sometimes falsely attributed to the bias of the law.

But family law plays little part in how most children are raised in marriages, and it is thus unlikely that it will play a large part in how children continue to be cared for after a marriage dissolves. The law has, however, been held responsible for the fact that more than four out of five children continue to live mostly with their mother after separation. As the data from so many countries show, the fulcrum is never set at 50/50 for daily care of children, even though surveys show that many people aspire to much more equal sharing between mothers and fathers (Glezer 1990).

Parenting, Principles and Children's Wellbeing

Historically, children were presumed to belong to their father, but by the early 20th century young children were considered better served by residing with their mothers. More recently, the emphasis has swung towards establishing the best interests of the child as judged on the merits of each particular case. Moreover, professionals in the field of child protection and family law (social workers, counsellors and lawyers) base much of their thinking on notions of the best interests of the child. In these fields, however, the child's interests very much enter the realm of professional determination and are removed from parental control.

Although in Australia children are assumed to remain the joint responsibility of their parents unless an order is made specifying some other arrangement, few divorced parents clearly understand this (Weston and Harrison 1989).

Their main misunderstandings were equating residence with total responsibility and that their own power in determining how their children would be raised was less than was the case under the Family Law Act. Australian law presumes continuing engagement of both parents and unless parents wish to specify or vary arrangements, their own private parenting practice continues.

'Best interests' are also very hard to establish and a good deal of the debate since the landmark work of Goldstein, Freud and Solnit (1980) has addressed the problem of such a definition. In court procedures, where the issue of the child's primary residence and continuing contact with parents is contested, many yardsticks of excellence in parenting have been used. One of the problems with this approach is the assumption that professionals of any sort can prescribe the best interests of the child, as opposed to the ideal world as viewed by the particular group of professionals.

On the other hand, professional opinions clearly can be helpful in determining minimum standards of care, as is done in child protection and child welfare. After that it is tiger country, particularly given that children can and do thrive in a very wide variety of conditions which are normally and very appropriately left for parents to determine.

Critics (Melli 1991) have pointed out that applying the principle of acting in the best interests of the child may excite competition between parents to establish their claim to be an ideal, or at least better, parent and to discredit the claims of the former spouse. One extreme expression of such competition is litigation, but fostering a notion of competition between parents at any level may damage the chances of parents negotiating the on-going upbringing of the children.

More recently in the United States, the principle being considered is that of keeping the child with 'the primary caregiver'. This approach has two main strengths. First, it is based on the notion that throughout a period of massive dislocation occasioned by the separation of parents, a child is well-served by as much continuity as possible (unless previous circumstances were harmful to the child). The second strength of the primary caregiver principle is that it can be based on observation; it is pragmatic, and in most cases will be obvious. Moreover, it is based on past behaviour and not on speculation about future changes and possibilities.

There are, however, a number of difficulties with the approach. As indicated earlier, it will be highly correlated with an apparent preference for mothers, since the primary caregiver is almost universally the mother. On the other hand, this principle applies equally when the roles have been reversed.

Nevertheless, the consequences of applying this principle will be very similar to those of 'maternal preference'. Thus the primary caregiver principle would be controversial in that it would appear to turn back the clock to an era when parental roles were accepted as more differentiated than is considered ideal today.

It also makes the assumption that behaviour in parenting is a good indicator of the importance of continuing daily contact in the child's life; that is, it equates the day-to-day care with the quality of the relationship with the child. The correlation between degree of care, of affection and importance in the child's life will be imperfect.

Links Between 'Best Interests' and 'Primary Caregiver'

The argument for linking the best interests of the child with the primary caregiver is that past behaviour probably reflects parents' best efforts to rear children under the circumstances and the continuation of the arrangement thus represents the least risk to the child. Moreover, continuity in relationships is considered to be an important buffer for the child in the adverse conditions that usually accompany parental separation.

Thus from the perspective of making the best predictions about the future, and of maximising continuity and experience, the primary caretaker approach may be a basis for establishing, if not the best interests of the child, then at least continuity with an experienced caretaker the better interests of the child in the particular circumstances. Melli (1991) argues that referring to the primary caregiver principle in matters of dispute has the strength of being a visible standard based on previous behaviour and less likely to need testing through litigation.

The Logistics of Parenting

Although the previous discussion has considered bases for resolving disputes in family law, fortunately these are usually mild and resolved by negotiation between the parents. Moreover, most parents have little recourse to outside advisers, in marriage or after separation. Just as parents take primary responsibility for their children in marriage, so too they continue to exercise this authority afterwards.

In any circumstances, parenting always has a large logistical component, requiring flexibility and co-operation. Both these qualities are hard to maintain through the early years following separation, and most parents gravitate to a position of parallel parenting to reduce conflict.

Despite this, the amount of contact between non-resident fathers and their children diminishes, even though children in the Institute's Parents and Children after Marriage Breakdown study continued to long for absent fathers and to see fathers as important even after years of sparse contact (Funder 1991). There is ample evidence that two parents are important in children's lives and that except in those rare instances of danger, maintaining two parents on the scene should be a goal for both parents and family law.

In the pursuit of this goal, the language of rights has no place. As much as possible the rights of injured parties from the marriage must be separated from matters involving the children. At present, this is very difficult given the language of the law and the procedures followed in settling ancillary matters money and children in the same framework of the assertion of rights and the processes of resolving disputes.

Separating money matters from child matters may appear to fly in the face of all we know about counselling and mediation, but having property and children cheek-by-jowl in the law and in the court continues to convey a very strong message that children and chattels are linked.

The law should look to separating parenting matters from money matters. This may require a distinction being made between the divorces of childless partners and those with children, perhaps adapting family law to cope better with the institution of family as distinct from the institution of marriage.

As Glendon (1987) notes, the law is a powerful symbol as well as a tool. Thus to consider matters of parenting first would convey the reality that a divorce involves, first and foremost, consideration of how separating parents will begin to negotiate their responsibilities over the years to come.

This article is based on a keynote paper presented by Kate Funder at the Seventh International Society for Family Law meeting in Opatija, Croatia, 13-18 May 1991.


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