- Family Repair
- By Diana Bagnall
- The Bulletin
- 01/07/2003 Make a Comment
- Contributed by: admin ( 75 articles in 2003 )
When parents divorce, mothers are far more likely to get custody of the children.
But growing pressure from fathers' rights groups, backed up by research and influenced by changing social attitudes, is leading to a push for greater sharing of post-separation parental responsibilities, as Diana Bagnall outlines.
Men want to look after their children. That's hardly a subversive statement, one would have thought. But in the context of divorce, it is. The huge interest stirred up by the federal government's announcement last week of an inquiry into child custody arrangements is evidence of that. The inquiry has a few strands but there's only one that people are talking about: whether parents are grown-up enough to share their children's upbringing after their relationship busts up.
That's probably not the way those most intimately involved with this issue would frame it. They tend to talk about rights. Fathers' rights and children's rights, mostly. The shared parental responsibility crusade has been driven primarily by a lobby group formed last October, the Shared Parenting Council of Australia, under which shelter organisations such as the Lone Fathers Association, the Men's Rights Agency, Dad's Landing Pad and Ozy Dads. Its federal director, Geoffrey Greene, has in his sights a change to the Family Law Act, which enshrines a child's right to an equal relationship with both parents. "It's already law and good public policy," he says, "but we believe that the process over the last 25 years hasn't achieved that because the majority of decisions exclude one parent."
Technically, the game is to introduce something called a rebuttable presumption of shared parenting. This means that unless one parent can show why it should be otherwise, the starting position should be that the kids will spend an equal time with each parent. This is new stuff in Australia but is well-rehearsed in the United States, where eight states have legislated for a presumption in favour of joint custody. California, which introduced it in 1979, has since amended its law to apply only when the parents have agreed to joint custody.
It's here where the story starts to get interesting because, as Michael Green, QC, an advocate for divorced fathers, says: "Everybody agrees that it's good to have free and easy and good contacts with each party. The devil is in the detail, as always."
So let's look at some details. The number of children whose parents divorce each year fluctuates, but increased by 8% between 2000 and 2001, when 53,400 children were caught up in divorce. Most of those children went to live with their mother (nearly 70% of Family Court decisions made in 2000-01 favoured mothers). The standard arrangement for non-resident parents is that children visit every second weekend and for half of the holidays. Research shows that most women find this satisfactory, and most men don't. Patrick Parkinson, of the University of Sydney's law school, and Bruce Smyth, of the Australian Institute of Family Studies, found that 74% of fathers wanted more contact with their children, while only 41% of mothers thought their children should see more of their dads.
The court is at pains to stress that its charter is to put the interests of children first. So why do those interests so dominantly align themselves with children living with their mothers? The mantra of men's rights groups is that the "family breakdown administration" is anti-male. But it's not that simple, says La Trobe University's Lawrie Moloney, a former director of the Family Court's counselling services.
Judges don't operate in a vacuum and Australian family values remain traditional; Moloney's colleague David de Vaus found majority support for the breadwinner role of men and family role for women when he tested the waters in the 1990s. Moreover, says Moloney, it's only recently that we've started to learn that men are just as capable of nurturing children as women. As British psychologist Michael Lamb, in his influential The Role of the Father in Child Development (1997), noted: "With the exception of lactation, there is no evidence that women are biologically disposed to better parent than men are. Social conventions, not biological imperatives, underlie the traditional division of parental responsibilities."
Moloney concludes: "I think what we're seeing is this slow and painful shift towards a recognition that fathers do have something to offer and we're being forced into this by structural changes to work and family, and by the fact that divorce is so common." His own research suggests that judges probably "struggle with the concept of gender neutrality and struggle to find ways of adapting to it".
So is a legislation change needed? Moloney has his doubts. "I don't think being prescriptive about these things is the way to go," he says. "Maybe we are moving beyond dads as peripheral but in setting up [rules], it ignores the fact that kids are unique."
Not only kids but each family situation. Roberta Shaw, whose book The Divorce Chronicle will be published in August by Limelight, was left to raise two young daughters when her husband ended their 10-year marriage. She would have fought any other arrangement, she says. "There needs to be someone seen by the children as the primary person," she says. "All this 50/50 stuff is so romantic but, at the end of the day, how many men want to take that level of responsibility? I'm very pro the kids seeing their dad, but it's extremely hard to get the whole thing happening in the first year or two."
But it's exactly then that parenting patterns are established; when the pain of separation is most crushing and men and women are at their most raw, their most vulnerable and, as Shaw remembers, "very naive" about the divorce industry.
The key is to know what sort of parenting will work best for whom, and in what circumstances. From Bruce Smyth's work, it appears that shared care - what he calls "the most logistically complex parenting arrangement possible" - may be rare in Australia because it requires parents to stay focused on their children's needs and put aside their differences, something the adversarial nature of the legal system doesn't encourage. Moloney says that getting family law professionals to think differently, to put their energy into helping couples work out what's best for their post-separation family, rather than treating their clients as individuals with opposing interests, is where the work has to happen. His Children in Focus project (www.childreninfocus.org) is a start.
Advocates for change say that a 50/50 law will change behaviour, that there won't be the incentives for non-co-operation, as there are at present (the argument the SPCA's Greene runs is that the more hostility a primary parent demonstrates, the less likely a court is to order joint residence).
However, US research suggests that for 25% of divorced couples, shared care is not a good option. This is because three to four years after separation, they are still at each other's throats. Californian divorce specialist Janet Johnson has shown that when kids have to move regularly between enemy camps, they suffer, girls particularly.
But over the same period, about 30% of couples have sufficiently good levels of communication and low levels of conflict to be what is called co-operative parents. The remaining 45% don't talk much but don't fight much either. They raise their kids in parallel, without much sharing of information. Which suggests that for 75% of separating couples, working out some form of shared parenting would be a good thing, since a meta-analysis of the research on how children fared in different post-divorce settings showed that, on average, mothers, fathers, children, teachers and clinicians all rated child adjustment better in joint-custody settings (The Journal of Family Psychology, 2002).
We may need to think much more creatively about what constitutes "sharing", though. Splitting the kids' time between houses may sound simplest, from an equity point of view, but Smyth says equity isn't the point. "The agenda isn't about blocks of time. It's about setting up healthy relationships with kids."
But growing pressure from fathers' rights groups, backed up by research and influenced by changing social attitudes, is leading to a push for greater sharing of post-separation parental responsibilities, as Diana Bagnall outlines.
Men want to look after their children. That's hardly a subversive statement, one would have thought. But in the context of divorce, it is. The huge interest stirred up by the federal government's announcement last week of an inquiry into child custody arrangements is evidence of that. The inquiry has a few strands but there's only one that people are talking about: whether parents are grown-up enough to share their children's upbringing after their relationship busts up.
That's probably not the way those most intimately involved with this issue would frame it. They tend to talk about rights. Fathers' rights and children's rights, mostly. The shared parental responsibility crusade has been driven primarily by a lobby group formed last October, the Shared Parenting Council of Australia, under which shelter organisations such as the Lone Fathers Association, the Men's Rights Agency, Dad's Landing Pad and Ozy Dads. Its federal director, Geoffrey Greene, has in his sights a change to the Family Law Act, which enshrines a child's right to an equal relationship with both parents. "It's already law and good public policy," he says, "but we believe that the process over the last 25 years hasn't achieved that because the majority of decisions exclude one parent."
Technically, the game is to introduce something called a rebuttable presumption of shared parenting. This means that unless one parent can show why it should be otherwise, the starting position should be that the kids will spend an equal time with each parent. This is new stuff in Australia but is well-rehearsed in the United States, where eight states have legislated for a presumption in favour of joint custody. California, which introduced it in 1979, has since amended its law to apply only when the parents have agreed to joint custody.
It's here where the story starts to get interesting because, as Michael Green, QC, an advocate for divorced fathers, says: "Everybody agrees that it's good to have free and easy and good contacts with each party. The devil is in the detail, as always."
So let's look at some details. The number of children whose parents divorce each year fluctuates, but increased by 8% between 2000 and 2001, when 53,400 children were caught up in divorce. Most of those children went to live with their mother (nearly 70% of Family Court decisions made in 2000-01 favoured mothers). The standard arrangement for non-resident parents is that children visit every second weekend and for half of the holidays. Research shows that most women find this satisfactory, and most men don't. Patrick Parkinson, of the University of Sydney's law school, and Bruce Smyth, of the Australian Institute of Family Studies, found that 74% of fathers wanted more contact with their children, while only 41% of mothers thought their children should see more of their dads.
The court is at pains to stress that its charter is to put the interests of children first. So why do those interests so dominantly align themselves with children living with their mothers? The mantra of men's rights groups is that the "family breakdown administration" is anti-male. But it's not that simple, says La Trobe University's Lawrie Moloney, a former director of the Family Court's counselling services.
Judges don't operate in a vacuum and Australian family values remain traditional; Moloney's colleague David de Vaus found majority support for the breadwinner role of men and family role for women when he tested the waters in the 1990s. Moreover, says Moloney, it's only recently that we've started to learn that men are just as capable of nurturing children as women. As British psychologist Michael Lamb, in his influential The Role of the Father in Child Development (1997), noted: "With the exception of lactation, there is no evidence that women are biologically disposed to better parent than men are. Social conventions, not biological imperatives, underlie the traditional division of parental responsibilities."
Moloney concludes: "I think what we're seeing is this slow and painful shift towards a recognition that fathers do have something to offer and we're being forced into this by structural changes to work and family, and by the fact that divorce is so common." His own research suggests that judges probably "struggle with the concept of gender neutrality and struggle to find ways of adapting to it".
So is a legislation change needed? Moloney has his doubts. "I don't think being prescriptive about these things is the way to go," he says. "Maybe we are moving beyond dads as peripheral but in setting up [rules], it ignores the fact that kids are unique."
Not only kids but each family situation. Roberta Shaw, whose book The Divorce Chronicle will be published in August by Limelight, was left to raise two young daughters when her husband ended their 10-year marriage. She would have fought any other arrangement, she says. "There needs to be someone seen by the children as the primary person," she says. "All this 50/50 stuff is so romantic but, at the end of the day, how many men want to take that level of responsibility? I'm very pro the kids seeing their dad, but it's extremely hard to get the whole thing happening in the first year or two."
But it's exactly then that parenting patterns are established; when the pain of separation is most crushing and men and women are at their most raw, their most vulnerable and, as Shaw remembers, "very naive" about the divorce industry.
The key is to know what sort of parenting will work best for whom, and in what circumstances. From Bruce Smyth's work, it appears that shared care - what he calls "the most logistically complex parenting arrangement possible" - may be rare in Australia because it requires parents to stay focused on their children's needs and put aside their differences, something the adversarial nature of the legal system doesn't encourage. Moloney says that getting family law professionals to think differently, to put their energy into helping couples work out what's best for their post-separation family, rather than treating their clients as individuals with opposing interests, is where the work has to happen. His Children in Focus project (www.childreninfocus.org) is a start.
Advocates for change say that a 50/50 law will change behaviour, that there won't be the incentives for non-co-operation, as there are at present (the argument the SPCA's Greene runs is that the more hostility a primary parent demonstrates, the less likely a court is to order joint residence).
However, US research suggests that for 25% of divorced couples, shared care is not a good option. This is because three to four years after separation, they are still at each other's throats. Californian divorce specialist Janet Johnson has shown that when kids have to move regularly between enemy camps, they suffer, girls particularly.
But over the same period, about 30% of couples have sufficiently good levels of communication and low levels of conflict to be what is called co-operative parents. The remaining 45% don't talk much but don't fight much either. They raise their kids in parallel, without much sharing of information. Which suggests that for 75% of separating couples, working out some form of shared parenting would be a good thing, since a meta-analysis of the research on how children fared in different post-divorce settings showed that, on average, mothers, fathers, children, teachers and clinicians all rated child adjustment better in joint-custody settings (The Journal of Family Psychology, 2002).
We may need to think much more creatively about what constitutes "sharing", though. Splitting the kids' time between houses may sound simplest, from an equity point of view, but Smyth says equity isn't the point. "The agenda isn't about blocks of time. It's about setting up healthy relationships with kids."
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