Posts Tagged child custody

Family Justice Review – will it help?

At last the Family Justice Review has been published. It concentrates mainly on the system of the family court process. A summary is provided here with the full report available via the link.

The Government is inviting responses by 23 June. You can respond directly or via Maypole, and we will collect all your ideas in one reply.

It is excellent news that a presumption of 50/50 equal care has beeen rejected. In Australia their Shared Care laws have been shown to increase risk of domestic abuse, increase gender economic inequality and meet mainly fathers’ needs.

Nothing sounds more fair than parents being equal. Treated equally, children divided equally at separation.

Yet the drive by fathers’ rights groups for equal care legislation has come to an abrupt halt with yesterday’s report. Research, particularly from Australia, shows that shared care legislation is unfair and unsafe, and increases inequality.

This finding seems such a contradiction, but shows that imposing equality where there is already inequality is not the solution.

A new book, Equality with a Vengeance by Molly Dragiewicz looks at how fathers’ rights groups are trying to erode the gains of the battered women’s movement in the US, as a backlash against feminism.

With improvements planned for the systems of family law, there remains nowhere within UK law to protect women’s right to financial equality and psychological well being at separation.

Children’s well being is linked to that of their primary carer. Yet an understanding of children’s needs remains shaped by contact, rather than the needs underpinning relationships, including primary care and safety.

There is still a lot of work to be done.

***

Thank you to everyone who sent in concerns about the proposals on child maintenance. A Maypole trustee attended a meeting at the House of Commons on 17th March, which was also attended by a number domestic violence organisations. The meeting focused on the unprovable nature of abuse, and the fact many women will be unable to afford the £100 fee.

It’s great that Maypole has been so quickly recognised as a credible source of evidence on how domestic abuse presents at separation. With your help, we can ensure women’s voices are heard in family law.
Maypole’s written response looks more closely at how women negotiating with an abusive ex are not able to come to agreements which are in the child’s best interests, more about why some women won’t be able to afford the fee, and our prediction that the fee will be used by perpetrators as another form of financial abuse – and so will discourage (rather than encourage, as the Government hopes) private agreements.

This will be sent next week, and will be added to our new web site (more about that as soon as we have news). If you would like to read a copy before then please contact us.

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Post-divorce – are there any viable alternatives to motherhood?

Lack of viable alternatives to motherhood

Boyd (2003) believes that ‘the ability and desire of women to leave their ‘special’ relationship with their
children behind may have been overestimated, particularly when the alternative was a perceived ‘choice’
to perform routine low paying jobs outside the home’ (39).
Mothers may find it easier to relinquish their role as primary care giver if they have an alternate identity
which is attainable and capable of replacing the fulfillment found in motherhood.

The reality for many mothers, having put their children’s needs first throughout the relationship, is
employment which is relatively low paid and of an inferior status to that gained before motherhood.
Allowing women to bear an unequal share of the financial burden of primary caring has no place in an
equal society. Mothers need, and deserve, support in re-establishing themselves in paid employment at a
level commensurate with their abilities, training and experience. Whether this should be provided by
fathers, at an individual level, or should be provided by Government, is a matter that must be addressed.

Relocation
Relocation is a common family experience. Women in intact relationships, and their children, frequently
move areas – leaving jobs, schools, friends and sometimes family – to enable the father to gain improved
employment opportunities. Many occupations involve parents working away from home for substantial
periods, eg jobs involving business and sales travel, sports professionals, Members of Parliament and the
Armed Forces. An understanding of relocation after separation must be placed in context of normal
economic migratory patterns, and occupational choices that are considered acceptable within law.

Women at separation may be seeking to relocate for a variety of reasons. They may have a greater need
than fathers to relocate for financial reasons – they are more likely to be seeking new employment, and
require family help (particularly support from grandparents) with child care. In most cases, a mother’s
ability to relocate will have a positive impact, either directly or indirectly, on her earning capacity.
If the relocation of resident parents – mainly women – were to be restricted by the courts on the stance
that parent/ child contact is paramount, then the same concern, and laws of equality, must mean that non
resident parents – mainly fathers – are subjected to the same rules. In addition, the prioritisation of child/
parent contact above all else should allow for one parent to prevent the other in choosing a job which
involves significant amounts of time away from the child.

The universal restriction of occupation and relocation of separated parents would effectively immobilise a
large portion of the workforce, increasing unemployment and childhood poverty.

Attempts in Australia to control women’s freedom has led to increased litigation(40).

There is no justification for applying different rules according to gendered roles. Women deserve, and
have a right to, the same opportunities and freedom as men, and the security to know that this right is
enshrined in law. Relocation need not deprive a child of a parent when both are free to move.

The lack of protection for primary care giving role
Where there is a willing choice by both parents, shared care can be beneficial to children, but many
mothers report that their ex partner manipulated or forced a change of role at or after separation(41):

‘He forced the primary care to change – he got into severe debt, forcing me out to work and then claimed that as I was the best wage earner that he should stay at home….After six months he disappeared with our daughter and presented a case for custody as the primary carer. He is in prison now for sexually abusing her.’

When parental roles appear to have changed in the context of separation, court evaluators need to be
aware of the possibility of coercion, and the resulting risk to children.

Women are disadvantaged by divorce even when there is no abuse. In an intact relationship, women with
children typically work part time or limited their career choice to accommodate the needs of the children
and her partner’s career. The parents therefore work as a team, and neither could fulfill their role without
the other.

At separation, parents are already committed to those roles, and the couple’s greatest financial asset is
usually the non primary carer’s career, which the primary carer has contributed to. Primary carers ‘have
earned the right to an equal share of the fruits of the marital partnership’(42)
.
However, financial settlements rarely compensate women for the economic sacrifices they have made.
Women are unlikely to ask for a settlement which adequately reflects their contribution to the family
assets, and would often prefer to be poor than financially dependent on, and connected to, an ex partner(43).

It is therefore the responsibility of government to ensure that primary care taking is properly protected
when parents separate.

39 Child Custody, Law and Women’s Work, S Boyd, 2003
40 Flaws in John Howard’s parenting law, 3 June 09, The Australian http://www.theaustralian.com.au/news/nation/flaws-in-johnhowards-
parenting-law/story-e6frg6nf-1225720527720
41 Mothers’ narratives, Maypole Women 2008/10, MATCH Mothers 2008/09 http://www.matchmothers.org/pages/gallery.php
42 The Divorce Revolution, L J Weitzman, 1985
43 The Divorce Revolution, L J Weitzman, 1985

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After Divorce: The Primary Caregiver and Money

Sharing child care with a controlling ex partner can be particularly damaging.

Family law currently fails to recognize that women have psychological needs, and contact orders that fail
to take these into account are bound to cause distress and/ or fail. The psychological well being of the
child cannot be separated from that of the primary care giver, so that a recognition of primary care is best
placed to meet children’s needs.

Mothers are more likely to combine their children’s best interests with choice of employment(34). Research
shows that mothers also continue as the primary care giver even when both parents work full time(35).
Typically, this has a negative impact on career progression and earning capacity(36).

Although this usually remains submerged as an issue when the parental relationship is intact, it surfaces
as a significant gender inequality at separation.

Financial settlements rarely cover the true value of lost income and pension.

The primary care taker faces the following financial challenges at and after separation:
• reduced earning capacity – in comparison to:
o the non primary care giver
o the primary care giver’s actual earning capacity without child care responsibilities
• lower status jobs, with less flexibility and fewer, if any, perks
• reliance on state benefits and financial support
• restricted or no access to financial services
• significantly reduced pension

Women may also have experienced, from their ex partner, squandered joint income and savings, and a
lack of honesty in disclaiming finances.

Women who lose their role as main carer (if the child goes to live with the father more than half the time)
also lose eligibility for state benefits, even if they retain substantial child care responsibilities. Domestic
violence is a common cause of homelessness for women, and the family court system contributes to this
risk(37).Children spending a substantial amount of time with mothers on low incomes, who do not qualify
for state benefits, are likely to experience the worst poverty of any child.

Current UK family law, and the concept of shared care in particular, reinforces and increases gender
differences in economic well being after parental separation.

It is unrealistic to expect a woman to suddenly slot back into the workforce, with no transition period or
training provision, and be able to maintain an adequate standard of living for her children and herself.
The loss of benefits and financial support can pose a very real fear. Women may feel a need to weaken
contact with the father, to protect them from an impossible financial situation. This is evidenced in recent
research(38).

At separation primary carers therefore deserve a financial settlement which includes an equal share of all
family assets to which they have contributed, enabling them to acquire long term economic independence
and security. Attention to these needs will reduce dependency on child support.

34 Women and Medicine, Royal College of Physicians, June 2009
35 Child Custody, Law, and Women’s Work, S Boyd, 2003
36 Women and Medicine, Royal College of Physicians, June 2009; Not Having it All: How Motherhood Reduces Women’s Pay and Employment Prospects, Jessica Woodroffe, 2009, Fawcett Society, Oxfam
37 Anecdotally, mothers report that they have lost their homes as the court’s and benefit system prioritise housing the children before, or instead of, protecting the mother from the consequences of abuse. This creates incentives for abusive fathers to claim residency, as a means to increase their share of state benefits and family assets, including (in some cases) the retention of the family home, Maypole Women 2008/10, MATCH Mothers 2008/09
38 Evaluation of the 2006 family law reforms, R Kaspiew et al, 2009

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Difficulties faced by mothers at and after separation – pt I.

Difficulties faced by mothers at and after separation

1. Lack of previous paternal involvement

Recent research shows that many mothers are ‘potentially welcoming of greater (paternal) involvement, but concerned about its practical implications’. A particular concern for mothers was ‘the potential for disjunction between the patterns of care prior to separation and those that may result from negotiations or litigation’. These concerns ‘focused on the workability of such arrangements, as well as the capacity of such fathers to meet the day-to-day needs of their children’(19).

In an extensive review of research, Boyd (2003) points out that the most important factors in successful shared parenting after separation are good communication and ‘parents (who) have a history of shared parenting responsibilities before they split up’20. Bertlett reaffirms a view that one cause of failure in shared care arrangements is that they are ‘often not continuous with caretaking patterns established during an intact marriage’(21).

This is also a consistent finding from Australia (22), which found professionals working with children reported: ‘fathers (who had not taken on a primary carer role in the past) needed assistance with some of the basics in terms of their children’s needs’ (23).

Enforced shared care at separation and divorce may not be a suitable mechanism to promote equal parenting when one parent has a history of limited involvement. A system that ensures primary and non primary caring roles are continued after separation would allow a parent who lacks experience to increase skills over time, building trust and co-operation, promoting constructive and workable shared care arrangements.

2. Lack of paternal responsibility after separation

Research has shown that, whilst most parents agree that the continuing involvement of both parents is beneficial for children, this belief is most common amongst mothers (24). Lack of paternal commitment is a frequent complaint. Findings show ‘the failure of non-custodial fathers to see children or take responsibility is more common and is more of a concern to custodial mothers than is prevention of contact’(25), with some fathers tending to focus on ‘quality time’, not on ‘tangible signs of caring’(26).
A recognition of the role of primary care would ensure consistency in meeting children’s needs, whilst ‘maternal/ paternal care’ would emphasize the continuing responsibility of the non primary carer parent.

3. Abdication of parental care
In some cases fathers, when their children are in their care, choose to abdicate their caring responsibilities to another female care giver; either a relative or new partner (27). The mother, who is usually the psychological parent, can find it particularly difficult to know that her children are being cared for by someone without the same psychological connection, and understanding of their needs.

Unless fathers adapting their working patterns in the same way as women do, it cannot be assumed that the idealism of ‘shared care’ is a reality in joint residency arrangements.

Child care by another female when the mother is available and willing to parent ignores a child’s need for primary care giving, and a mother’s right to care for her own child. In addition, when communication is poor between the parents/ carers, continuity of care is very unlikely to occur. This cannot be in the child’s best interests.
A recognition of primary care would set expectations that both parents fulfill their roles, ensuring continuity and consistency in children’s care.

4 Maternal identity
For women who have children, their identity is deeply entwined with that of ‘mother’, and most gain a deep sense of satisfaction and well being from their mothering role (28). That role is also key to many of a woman’s social contacts, in which the lives of mother and child are embedded.

Smart (1999) found that ‘it was difficult for mothers sometimes to relinquish an identity which went with being a primary carer’ and being a mother is ‘an identity and not just a job’ (29).

In an extensive review of the consequences of joint custody in the US, Dr. L Weitzman observed: ‘women feel more socially and psychologically dislocated by divorce than men. In general, women are far more likely than men to define the family not only as the anchor of their identity, but also as the source of their continuity. Work typically fulfills these functions for men’(30).

Australian research found ‘a number of family law system professionals spoke of women feeling that their performance as mothers was being devalued by changes in caring arrangements. This was seen to have practical as well as psychological implications’(31).

The fact that one parent can take the role of primary care giver from the other after separation, either by applying for residency through the courts, or encouraging a child to live with them, presents a threat to the primary carer’s identity and main role in life. Current family law, which assumes a gender neutral approach, ignores the fact that women are usually the psychological parent to children, and an enforced change in residency is ‘unfair to the mother and potentially harmful to the child’(32).

Women may discourage the relationship between the children and father for a fear that that contact may increase over time. To take the role of primary care giver from a woman, without her consent, is a deeply traumatic experience(33). It is natural that women will fear the loss of their role, and loss of daily, meaningful contact with their children.

A recognition of primary care giving would offer women a safe and secure psychological environment, enabling them to better support the father/ child relationship.

19 Evaluation of the 2006 family law reforms, R Kaspiew et al, 2009
20 Child Custody, Law, and Women’s Work, S Boyd, 2003
21 Child Custody, Law, and Women’s Work, S Boyd, 2003
22 Evaluation of the 2006 family law reforms, R Kaspiew et al, 2009
23 Evaluation of the 2006 family law reforms, R Kaspiew et al, 2009
24 Evaluation of the 2006 family law reforms, R Kaspiew et al, 2009
25 Perry 1992, Laing 1999, from Child Custody, Law, and Women’s Work, S Boyd, 2003
26 The New Family, Ed E B Silva and C Smart, 1999
27 Child Custody, Law, and Women’s Work, S Boyd, 2003
28 The Cultural Contradictions of Motherhood, Sharon Hays, 1996
29 The New Family, Ed E B Silva and C Smart, 1999
30 The Divorce Revolution, L J Weitzman, 1985
31 Evaluation of the 2006 family law reforms, R Kaspiew et al, 2009
32 McBean 1987, from Child Custody, Law, and Women’s Work, S Boyd, 2003
33 What are the experiences of women living apart from their children?, J Heathcote-Osborne, 2008

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Valuing Motherhood – Women’s Connection to their Children

2.2 Children’s need for primary care giving

Children are cared for in accordance with a hierarchy of needs(10), in which physiological and safety needs must be met before benefit can be gained from relationships with others.

The presence of one parent who has overall responsibility for the child is a key feature of primary care giving, providing consistency and continuity of care. The disruption of the bond between the psychological parent and child should be avoided in the best interests of the child(11), and children continue to need attachment to their psychological parent throughout childhood(12).

When child care is divided equally, or nearly equally, at separation, mothers are likely to receive less financial support, although their costs, particularly housing costs, will not be similarly reduced. Women in this situation need to work longer hours to make up the difference. There is no evidence that fathers reduce their working hours to accommodate shared care(13), so shared care effectively has the potential to provide children overall with less parental care after separation – not more.

Recent court cases have demonstrated a profound lack of understanding of how children’s needs are met, and where the child’s relationship with the non primary carer (particularly those with a history of non involvement) fits in to an overall hierarchy of needs. In the recent case of TE v SH and S14, residency was transferred from the mother to the father. The child had been ‘flourishing’ in the mother’s care, whilst the father demonstrated a lack of empathy(15), and a proven lack of commitment to primary care giving. The court’s concentration on the potential (but unproven) benefits of the father/ child relationship obliterated consideration of the child’s more basic needs, including established attachments and continuity of care(16).

A failure to promote contact is not the same as a failure to meet a child’s essential needs. Nor does a failure to promote contact mean another adult is better placed to meet the full range of a child’s needs. No benefits can be large enough to justify the removal of a child from their primary care giver, where that care is proven to be good or good enough. The primary carer is the person most able to meet the child’s basic needs, and primary care forms the foundation on which all other relationships are built.

2.3 Women’s connection to their children

Primary care giving represents not just the functional meeting of needs, but a psychological connection. It has its origins in biology, brain structure, hormones, social conditioning and gendered parenting roles (17).
The definition of ‘equality’ to mean ‘sameness’ is therefore naïve, and ignores a mass of evidence that shows men and women have differing and complementary skills. Mothers’ and fathers’ roles are not mirror images of each other – they are not the same, and these differences cannot be eliminated by legislation.

Research shows that children’s relationships with their fathers are important but qualitatively different (18). Meeting certain conditions is crucial in helping mothers feel confident in promoting the father/ child relationship. The biggest factor of all is probably trust – trust that the father will identify and meet all the child’s needs, keep the child from harm, and not use child contact to undermine or harm the mother.

10 Motivation and Personality, A Maslow, 1987
11 McBean 1987, from Child Custody, Law, and Women’s Work, S Boyd, 2003
12 Child Custody, Law, and Women’s Work, S Boyd, 2003
13 Anecdotally, mothers who have lost their role as primary carer at or after separation almost always report that their ex partner is self employed, unemployed or works from home. Those that seek residency are able to accommodate a change in role without damaging their salary or career. Women’s narratives, Maypole Women 2008/10, MATCH Mothers 2008/09 14
http://www.familylawweek.co.uk/site.aspx?i=ed52522
15 Empathy is fundamental to a parent’s ability to identify a child’s needs, The Essential Difference, Simon Baron-Cohen, 2004 16 http://www.familylawweek.co.uk/site.aspx?i=ed52522
17 The Essential Difference, Simon Baron-Cohen, 2004
18 The Essential Difference, Simon Baron-Cohen, 2004

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Valuing Motherhood pt. II – The Reality of Family Lives

2.1 Primary care giving, and gendered parenting roles

In the majority of families mothers take ‘primary responsibility for every child rearing duty’(4), even when both parents work full time’(5) and when joint residency is ordered by the courts(6). Primary caring involves not just direct caring and associated tasks, such as cooking and cleaning, but also being responsible for
organising the child’s activities and other child care.

Primary caring is dependent on the carer’s ability to empathise with the child, and thus identify their needs(7). The term ‘primary care giver’ is therefore also referred to as the ‘psychological parent’ by some researchers.

When fathers are involved, their input tends to be additional to, or in support of, children’s continuous care needs. In a recent study, only a minority of mothers saw fathers as being ‘very involved’ in their child’s everyday activities prior to separation(8).

These gendered roles have been agreed – explicitly or implicitly, between both parents as being the best way to meet their child’s needs’(9).

UK family law, based on the Children Act 1989 is based on gender neutrality – but in the reality of women and children’s lives, parenting is never gender neutral or equal.

When mothers do not promote the father child relationship, the reasons behind this need to be understood as an interplay of social and psychological factors, and not as a failure of care. In most cases, reluctance to promote contact is intrinsically linked to mothers seeking to protect their child and themselves from perceived physical, psychological and financial harm. Until these factors are understood, barriers to contact will not be overcome.

4 The Cultural Contradictions of Motherhood, Sharon Hays,1996
5 This finding is supported by numerous research projects, and is consistent over time e.g. Hochschild 1989, Eichler 1997, Coltrane 2000, Silver 2000, from Child Custody, Law, and Women’s Work, S Boyd, 2003; Fathers’ involvement with their secondary school aged children, Welsh et al, 2004; Women and Medicine, Royal College of Physicians, June 2009
6 Leaf 1996, from Child Custody, Law, and Women’s Work, S Boyd, 2003
7 The Cultural Contradictions of Motherhood, Sharon Hays,1996; The Essential Difference, Simon Baron-Cohen, 2004
8 10-37%, Evaluation of the 2006 family law reforms, R Kaspiew et al, 2009
9 Maccoby 1999, from Child Custody, Law, and Women’s Work, S Boyd, 2003

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Changes to Child Maintenance – Parents must face paying government fee to split up

The current child maintenance system looks set to undergo a radical reform, and the changes have been published for consultation. Under the new proposals, parents will face paying the government a £100 fee to separate. A press release from the Department of Work and Pensions on the 8th of January says the plans

focus on strengthening families, will encourage responsibility and support separating parents to reach their own agreement on maintenance and other issues important to the long term welfare of their children […] the Government believes that reaching a settlement independently is far more likely to produce better outcomes for the child.

In the Guardian, Maria Miller, Undersecretary of State in the Department of Work and Pensions has been quoted as saying: “We know that if effective financial arrangements are in place, those parents are much more likely to stay in contact… Staying in contact with both parents is absolutely critical to give a child the best start in life.”

However, as The Telegraph’s Patrick Hennessy predicted, “They [the changes] are likely to spark protests from groups representing women trapped in abusive relationships”

Firstly, how would women can afford the £100 fee if they have no access to finance? Miller saysthat for those on benefits, the fee will be £50, starting with an initial upfront payment of only £20.

However, women experiencing financial abuse may have no money and no legitimate access to loans in order to pay the application fee. If they struggle to pay, they will most likely be referred to the “new, more efficient statutory service [that] will ….tackle the minority of parents who refuse to pay.” – which may well result in more fees.

It’s probable that the couples needing the most help to sort out finances will be in high-conflict relationships – which are usually indicative of domestic violence, The changes do make a concession to domestic violence, stating that “In cases where people have suffered domestic violence, their case will be fast tracked directly onto the statutory service – and no payment will be required to enter the system.” However, most incidences of domestic violence leave no trace, and women tend to under report domestic abuse, or they find their concerns are ignored.

Maypole would like to see solutions for women on low incomes with no access to finance, and all those experiencing domestic abuse.

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Balancing rigid family courts orders and parental concrens

Mr Justice Coleridge, a senior division judge for England and Wales recently announced that he thinks people do not take family court decisions seriously enough.
Mr. Coleridge wants to see a return to the levity of the courts, advising we should follow Australia’s example and ‘resume wearing robes and removing the carpets and indoor plants’.
However, it seems dubious that the removal of potted plants in courts will deal with the problems that are rife in family law.

Research shows that Shared Care legislation introduced in Australia in 2006 focuses on contact rather than safety, children’s full range of needs, and the well-being of the primary carer – usually the mother – which has a direct impact on the child’s well-being. A recent Maypole study highlighted some worrying statistics about child custody in the UK. In 60% of cases, the court ordered unsupervised contact even when there were ‘serious welfare concerns’, such as the presence of domestic violence in the relationship, even though in 90% of cases in the family courts there are allegations of abuse.

Coleridge regrets the ‘lack of respect’ for family court orders. Yet what is a parent, who is ordered to hand over their child to a parent with a history of abuse, to do? Such a parent would fall foul of Coleridge’s proposed three strikes system, by which if the parent disobeys a court order three times the residence of the child would be transferred to the other parent. Adhering absolutely to whatever the court orders leaves little room for consideration of variable factors, and more importantly, shows no regard for the welfare of the child; it seems to reduce the child to little more than a prize or a reward for one parent.

Do judges really know better than protective parents who are dragged through the court system by abusive ex partners using child contact as a means of continuing control? Is it better for children that their non abusive parent adheres absolutely to court rule? Coleridge concedes that ‘better judicial training’ is needed in today’s courts, implying that the current standards of training are not high enough. Is it not understandable, and even reasonable, therefore, that parents with their child’s best interest at heart should sometimes doubt the authority of the family courts?

Admittedly, not all of what Coleridge proposed would be detrimental to the courts. He remarked that too great an emphasis was being placed on listening uncritically to the views and wishes of children, including young children. Our report echoed the same sentiments – ‘abusive tactics can cause children to appear more bonded to an abusive father, and even reject their mother. ‘

Perhaps Coleridge has arrived at the right conclusion via the wrong means: he seems largely concerned with authority, wanting the family court to ‘act as the proper and appointed authority figure both towards the parents and the children.’ The use of child contact as a continuing tool of abuse is rife in the family courts. We do need well trained professionals who truly understand the complexity of abuse and how it damages relationships. And, when women seek to end abuse by ending their relationship, we do need the state to act with authority in promoting safety before contact. It is only then that women and children will be truly free to escape domestic abuse.

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