What are the legal implications of parental alienation?

Co-Authored by Lisa Wagner and Ashleigh Middlin, Doolan Wagner Family Lawyers. Republished with permission.

Parental alienation is a term which is used to describe when one parent (the “alienating” parent) behaves in a certain way to undermine and damage the other parent’s relationship with a child.

Whilst this term is considered to be controversial and there is a reluctance by the Court to label certain behaviour as this, it is apparent that behaviour which falls under this definition is becoming more and more common, particularly when there are parenting proceedings on foot. The uncertainty arising from COVID-19, is likely to see an increase of these cluster of behaviours.

Case Law

In determining what is in the best interests of the child, the Court must consider primary considerations as set out in Section 60CC of the Family Law Act 1975, being:

1.     The benefit of the child having a meaningful relationship with both of the child’s parents; and

2.     The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Although there is reticence for the Family and Federal Circuit Court to identify and label a parent’s behaviour as “parental alienation”, there have been numerous cases where the Court has recognised such behaviour and accordingly, made orders to change primary residence in circumstances where one parent poses an unacceptable risk of harm. 

In Lankester v Cribb [2018] FamCACF 60 (6 April 2018), the Mother was the primary carer of a nine-year-old child and it was alleged by the Mother that the Father of the child had sexually abused her.

During the course of the proceedings, evidence was produced demonstrating that the Mother had been frequently questioning the child about sexual abuse including, on one occasion, having recorded the conversation and the child’s complaints. Whilst there had been medical examinations of the child and an assessment undertaken by the Department which concluded there was no evidence of sexual abuse, it was the Mother’s view that the Father had sexually abused the child.

After the Family Consultant met with the parents and child, it was expressed by the Consultant that in their opinion as a result of the Mother’s behaviour, namely the unfounded allegations, the child would be “exposed to continuing distress and confusion about her relationship with [the Father] whilst she lives with [the Mother]”. Further, that as a result of the Mother’s behaviour, each changeover would be a “highly stressful experience” for the child which would likely affect the child’s emotional and social development, in turn impacting upon the child’s capacity to connect positively with her Father.

Although the Court recognised that changing a child’s primary residence may result in grief, loss, confusion and a high level of stress, these adverse consequences were considered to be outweighed by the risk the Mother posed to the child should the child continue to live with her. On the basis that the Mother posed an unacceptable risk of harm to the child while in her care, the Court ordered that the child’s time with the Mother be suspended for a period of six months, after which time there be a staged reintroduction of time (including planned supervised and unsupervised time) with the Mother.

Similarly, in Goldman v Goldman [2018] FamCACF 65 (12 April 2018), the Court changed the primary residence of the two children (aged 11 and 13) as a result of the Mother’s behaviour. This was largely based on the Single Expert’s opinion that the children had a “close dependent relationship” with the Mother which was “not conducive to good future mental health”. The Court also formed the view that the Mother was entirely focused on punishing the Father by “… turning the children’s affections away from him” which in turn caused emotional harm to the children and posed a continuing unacceptable risk of harm to them.

The consequences of parental alienation

As a consequence of the Mother’s behaviour, a change of residence was ordered which resulted in the children living with the Father. The Court also ordered that the children’s time with the Mother be suspended for a period of four weeks, after which the children spent supervised time with the Mother for one year, and thereafter in accordance with a gradual and incremental increase of unsupervised time. 

It is not often seen that the Court orders a change of residence for children from one parent to another. Where it is established, however, that one parent’s behaviour has (and will continue to) harmfully impact a child and/or their relationship with the other parent, the Court will consider such an outcome. This is the case even if such behaviour is not labelled as “parental alienation”.

Disclaimer:

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact Doolan Family Lawyers.

Early Childhood Regressions: Trauma or Conflict?

Milestone regressions and behavioural changes of young children are frequently a major concern of separating parents. There are two, very rigid viewpoints often held by parents when regressions are reported. 

Parent A often reports that the child has regressed to bedwetting; is having unexplained tantrums, or appears to be over-tired etc. They fear that the child is not being adequately cared for and this often results in withholding the child due to those fears. In many cases it results in re-litigation or further delays current proceedings. 

Parent B most frequently claims that the child is happy in their care and that they are well looked after. They have trouble grasping the problem because it’s not occurring under their watch. They will commonly claim that Parent A is making this up to cause trouble for them. 

While all suspicions of child maltreatment should be explored, there is a more likely explanation which is centred around the child’s perception of their dramatically changed world. Psychologists and family therapists state these regressions or changes in behaviour are not necessarily something bad that is being done to the child or fabricated by the other parent. Rather, it is often the presence of conflict between the parents, and the absence of the familiar relationship of the parents when in the child’s presence. 

Even when children have been exposed to parent conflict prior to separation, they become accustomed to it. Their routine has stayed the same, they are fed and cared for in the one home and both their parents are coexisting with them under the one roof. When separation occurs and routines are disrupted, the child can have significant adjustment issues. 

However, this is not a reason to resist shared care. Children, even young ones, can and do adapt fairly quickly. It is the presence of conflict and the refusal or inability of parents to separate their issues from the child’s needs that cause the behaviours that underpin this apparent trauma. 

I asked Family Therapist, Terri Kelly for her views. This is what she said. 

One of the hardest things a parent can do is find the courage to pause and ask themselves ‘what if?’. 

What if the way my child is behaving means something different to how I see it? 

What if my child doesn’t see the parent the same way I do? 

What if my thoughts and beliefs are colouring my views on what my child’s behaviours mean? 

Finding the courage to be vulnerable enough to see a different perspective is a huge ask when you have fears and doubts about the other parent and surety that you are right in how you see things. 

But, what if? 

There is always more than one way of understanding your child’s experiences. When you find the courage to pause and ask yourself the question of what if, you open the door to new possibilities of seeing the world through your child’s eyes.

Terri Kelly

What the child needs is a sense that everything is okay between their parents, even if it’s not. Prior to separation, they are familiar with seeing their parents talking to each other and sharing time together with them. When conflict is high after separation, what they now experience is an abrupt changeover in a strange location where neither parent can be civil, let alone spend time in the company of the other parent.

These children need particular care and for their parents to be attuned to their perception of the world. Being child-focused means being able to consider these matters through the child’s eyes

From the child’s perspective, they are dropped off and picked up in a hostile, often unfamiliar environment. They get a strong sense of their parents’ anger and resentment displayed toward each other. Sadly, even infants get a sense of being caught in the middle. They feel torn in their love, and as a consequence will often say or do things which are out of character. They will feel a need to express an allegiance to one parent, or the other. Sometimes both. 

A child will often say “I don’t want to go back” or “I don’t want to leave you”. In reality, what the child is most likely saying is “I don’t want to feel torn between you”. 

When you find the courage to pause and ask yourself the question of ‘what if’, you open the door to new possibilities of seeing the world through your child’s eyes.

What is optimum for children in these moments is time together with their their parents. At very least, they need to get a strong sense that everything is okay.  

While it seems a far cry for many parents involved in family court proceedings to facilitate time together as a (separated) family, those parents who navigate amicable separations report doing these activities regularly. Studies show that these children do not have the same level of associated trauma as parents who are high in conflict. 

So how do you go from being hostile to being ‘friendly’? Well, that’s up to how much you are willing to help your child adjust. And this means both of you. I say this over and over in consultation with separating parents: “You must find a way to separate your relationship issues from your co-parenting requirements to meet the child’s best interests.

You don’t have to be friends with your co-parent, but if you want to give your child the best chance of adjusting without added trauma, being friendly toward them will significantly help. 

Recommendations 

Some adjustments I suggest parents make (wherever possible)

  • Always speak positively about the other parent 
  • Help the child make a gift from them for their other parent 
  • Send photos to their other parent on behalf of the child and show/tell them you’re doing it. Bonus points if you can read/show their happy response once received. 
  • Give hands-on help to facilitate Facetime calls. Say hello. Be courteous. 
  • Invite the other parent to share part of special days together as a ‘separated’ family. 
  • Share an occasional meal together. 
  • Become okay with the other parent being in your home for short periods. 

Even if you’re faking it, you’re doing it for the child. It is vital that both parents put aside their differences for this to occur. If you can’t achieve that on your own, or you fear your co-parent won’t do their part, you should seek support from a co-parenting coach or parenting coordinator. 

In the vast majority of cases, the child is not being hurt or harmed in the other home. They are not traumatised by the separation itself. What they are responding to is the conflict they witness, or sense between their parents, and the absence of having both of you together in their very small world. 

So ask yourself, What If…..

For more information, contact Jasmin Newman

Nurturing Children through Separation and Divorce

There are many aspects of separation and divorce. While it’s natural that parents need to resolve disputes to their satisfaction, it’s important that the children don’t become lost in that process. 

Parents who are in dispute present to mediators, or their lawyers, with issues that revolve around their needs and what they want to walk away with after their divorce. For children, this means parents are focused on themselves and what they see as ‘fair’ but this does not necessarily mean being ‘child-focused’.

When there is a high level of conflict between parents, the children are aware, even if those arguments are not in front of them. They are very in tune with you and they get a sense of when you’re stressed or are feeling unhappy. Your conflict then becomes their conflict and it’s common to see children have significant changes in behaviour during this time. They may regress on previous milestones (such as bedwetting); have changes in attitude; poor emotional regulation; poor decision making; and a variety of other negative behavioural shifts. 

Parents sometimes get confused about the meaning of child-focused and what’s in the children’s ‘best interests’. The focus becomes muddied on what they (the parents) think about time and division, and not what children are missing, which is having both of you, all the time. 

Here are some tips on taking a more nurturing approach on some of the key issues presented by parents. 

Memories are not defined in time

While some parents argue about time, children do not want to feel as if they are another ‘thing’ to be shared in your divorce. What’s important to them is that they have a meaningful relationship with each of you and that their time with you brings value to their lives. They want to feel loved, supported, heard and cared for, no matter what amount of time that is for. They also want to know that you are happy and okay when they are not with you. 

Moving between homes 

This can be a big hurdle for children to adjust to moving between homes, particularly when conflict is present. Support your children during this transition time by greeting each other politely. Allow the other parent to hug or kiss them goodbye and/or embrace the receiving parent with love and affection. Sometimes they forget their special items, even when you’ve reminded them, so if they need something in order to feel settled, it would be best if you can communicate that freely between the parents and accommodate the child’s needs. 

Inclusive co-parenting

The children don’t like to be apart from either of you. Positively including the other parent into your conversations during the week helps them to know that they are a part of each of you. There are many ways you can ‘include’ them, without needing to spend time together. For example “Would you like to share a pic of this with Mum / Dad?”  Or “Don’t forget Dad / Mum would like to see your certificate”  Or, “Would you like to make a batch of biscuits to take to Mum’s / Dad’s?” 

Speak positively 

Children of all ages love to hear stories of when they were younger. Share incidental stories of times you remember and positively include the other parent, For example, “I remember when you were two and Dad / Mum and I took you to Queensland for a holiday” – then, of course, tell them about the experiences as a positive memory of that time. I am sure if you think about it, there are many ways you can incorporate these stories.

It is not practical to suggest that all separating parents can be friends. However, you can nurture your children in a way that tells them that their needs matter. What children want most is to know they are not caught in the middle of your disputes. Nurture them as you learn to parent together while living apart.


You can find more information and helpful guidance in the Parenting After Separation Course. Or contact Parenting Coordinator, Jasmin Newman via the contact tab.

Parenting Coordination – a new approach to resolving ongoing parental conflict.

Disputes and conflict do not always end after court orders or agreements have been reached. The nature of drawn-out family law disputes can mean that conflict becomes entrenched and is hard to overcome. Parents don’t necessarily have the right tools to move on from what’s happened in the past and focus positively on their future co-parenting arrangement. 

I often hear from parents “What now? How can I co-parent after everything that’s happened?”

Parenting Coordination is a new area of family law to help parents resolve minor disputes and adhere to parenting orders and agreements. We work with both parents in a safe, collaborative and child-focused manner. 

Parenting Coordinators are recommended by the Court, ICL, Lawyer, a Mediator, or direct by parents.

A Parenting Coordinator will meet with you monthly (or as required) and can help you with

  • Ongoing coaching and education in post-separation communication. 
  • Conflict resolution, anger management and self-regulation. 
  • Meeting the requirements of court orders or consent agreements. 
  • Mediating on-going disagreements and facilitating improved capacity for reaching agreements on minor disputes yourselves. 
  • Promote healthy relationships between children and both parents. 
  • Prevent re-litigation due to contraventions. 

Parenting Coordination helps to minimise stress on all the family. As a trained facilitator, my commitment is to help you learn new strategies and create new patterns so you can each move on with your lives and be the best parent you can be for your children. 

Children’s outcomes after separation and divorce are improved when parents have the least amount of conflict. I know you want the best for your children, and my aim is to help you be the best you can be.

Contact Jasmin Newman for more information via Jasmin Newman Mediation

Considering Child Safety During COVID19

Despite a shaky and uncertain start for many parents on how shared parenting would take place during COVID19, there is now a clear and concise message from the Government and the Family Court. Co-parenting in the vast majority of cases continues as it has always done. This applies to both court orders and those families who have not attended court but whose children routinely move between homes. 

Court orders are considered ‘essential’ thus facilitating travel for parents. This is particularly important for parents traveling between States where they may be required to show parenting orders to police on the border. Isolation requirements will need to be met by each parent, just as they were doing anyway. 

Child safety is considered to be the primary consideration under Australian family law. As we have never before had to navigate safety regarding a global pandemic, this is new and unchartered territory. However it also gives an opportunity to discuss the broader context of child safety. 

Issues of immediate safety are: 

  1. ensuring a child is not subject to family violence from either parent; and 
  2. long term safety in which a child’s mental health and overall wellbeing is demonstrated to be improved by continuing, ongoing relationships with both their parents. 

During COVID19 given that immediate safety has already been addressed, it is the long term impacts that parents must consider. 

The primary concern many parents have had regarding a child traveling between homes has been a distrust in the other parent to comply with social isolation requirements, including those who may be quarantined after crossing State borders. 

Given the now high priority police and military are placing on monitoring social isolation, noncompliance by any person is becoming a risk in and of itself. The vast majority of people are doing the right thing and abiding by requirements. Those who are not are being issued warnings or infringement notices. This makes the likelihood of noncompliance almost zero, thus removing any level of real risk. 

The Chief Justice of the Family Court, Will Alstergren, issued a media statement clarifying issues around orders.  In an article published by The Australian, Alstergren further implored parents to act sensibly and reasonably.   “Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent … This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.” he said. 

These most certainly are difficult and conflicting times for all Australians and it’s normal that we have elevated fears and concerns during this time. For all of us, being restrained from normal travel and daily interactions with our family and friends is emotionally debilitating. 

For parents who can take a wider perspective in this time,  they will see that children of separated families have an opportunity to move between homes, thus giving them that vital contact they are craving, and which sustains them at a deeper level. These children will have some variety that the rest of us do not. A change of home, minor change in routine, different meals being cooked for them and, most importantly, the company of their other parents and perhaps step families. 

In normal times we take these small things for granted. During the pandemic we are now living, these are big issues that will go a long way towards helping children cope. Their likelihood of suffering long term mental health issues will be reduced and their recovery time improved by having at least some variety. 

In weighing up safety we must consider the long term impacts on a child’s wellbeing. This is demonstrably improved by a meaningful relationship with both their parents. I implore all parents to see this as an opportunity to help their children during this difficult time. Shared care is best for children, even more during this COVID crisis.

The Leaver and The Left

There is a concept in separation and divorce in which there is often a disparity between where each party are emotionally in relation to the separation.

While some couples come to the decision together, in many cases one party has already made the decision to leave long before they’ve told the other. They are referred to as ‘the leaver’. This can cause a great deal of frustration for the person who is being left.

As you will see from the inserted graphic, the leaver is ahead at every stage. By the time they are making new plans and coming to terms with their life ahead, the left is only just finding out. This in itself can cause a great deal of conflict.

What happens then is the grief cycle for the left, which the leaver has already had time to come to terms with, is only just beginning. For the leaver, there are heightened emotions, often denial and sometimes still trying to save the relationship. This is discussed in full in the parenting after separation course.

The message I encourage separating parents to understand is to have an understanding that you are each on the same path but at different stages. You will ultimately both come to a place of acceptance, however, if you can respect that each of you is at different stages, this will go smoother.

Consider the graphic and where you are now.

Were you the leaver or the left?

Where is your co-parent at on this scale?

What do you think life looks for them now?

What do you think they experienced at various stages?

This is just some food for thought. You may not come up with all the answers you need right away. Processing relationship grief and loss is an individual journey and can take time. You will come through this in the end.

Activities for engaging your children online

Often the non-resident parent (be that for a week, or extended period) will report having difficulty in engaging children online. Phone calls, Skype and Facetime are all wonderful ways to interact. But how do you keep them interested?

Firstly, I think it’s important to acknowledge that online engagement can be both necessary and sometimes the only means of contact for a long period. This not only applies to separated parents but also Defence personnel on deployment, FIFO parents, etc. It’s hard, but it’s survivable.

Many parents of young children report their children are disinterested or seem distracted. They may have 20 minutes allocated but it’s hard to keep the attention of a small child for that long unless you’re doing an activity with them.

Here are some tips and suggestions I give often to parents of young children. Remember that some activities may be trial and error.

Read a storybook

Just as you used to do at bedtime, children still love for you to read stories to them. Pick a few books and have them nearby. You can turn the pages to face the screen and read as you go. They will probably remember some of the sounds, or words and might even join in.

Make them a gift

Get yourself some craft supplies and while on your Skype call, ask your child for input into what you are making for them. For instance, if you’re making a stick figure doll (paddle pop sticks, glue, coloured cotton wool, buttons) – then invite them to choose the colours, fabric or tools you use to create it. These can all be purchased cheaply at a $2 shop or similar.

When it’s done and if possible, send it to them. Or tell them you’ll keep it in a safe place for when you next see them.

Draw a picture

Using an A4 notepad, ask them a topic of something they like. It might be an animal, a farm, a house – whatever comes to their mind. Invite them to give you feedback as you draw. Which colour green? Where should I put the sun? What’s goes on top of the hill? Are there clouds?

PS. You don’t have to be Picasso! Remember, this is not a test – it’s fun for you and your children.

Play a song

Bring out the smiles with a favourite song from one of their favourite characters, kids bands, or movies. Yeah, you’ll be singing along to Frozen in no time!

If you’re musical, play or sing them something yourself. Just aim to choose a song that is a favourite of theirs.

Play a memory game

Okay, so this isn’t like the cards memory game (although if you’re clever you could try that too. Here’s what I mean:

You start by saying, let’s play a memory game! “I remember the time we went to the Gold Coast on holidays”. Then it’s their turn. “Oh yeah, I remember when we went to movie world!” Your next turn “I remember the day you were born and we were at the hospital” Now, they aren’t going to remember that so prompt them with “What is your next favourite memory” and on it goes.

Write yourself some prompters and have them nearby. It’s okay to talk about the past when you were a family. It’s very positive for them to remember happy times.

Remember….

Children learn through repetition – and they enjoy it! So don’t be afraid to repeat the ones that work the best. You don’t need to reinvent yourself coming up with ideas for every time.

You’re doing your best and that’s fantastic. Every step forward is one less you have to take!

Co-parenting and the COVID19 Crisis

During times of crisis, we tend to react from a base of fear. However, we all react or respond to fear in slightly different ways. And that’s okay.

The important thing in co-parenting during this time is that you recognise there is more than one way to get through this. It’s also likely that you may have different approaches as to what’s best.

The biggest concern of co-parenting through this current coronavirus crisis is if the children can move between homes safely during any future quarantines. And if not, what will happen to existing court orders or parenting agreements. I know some parents are concerned about breaches or being accused of withholding children.

In short, you should follow the government advice or specific advice of your health care professional. If you or your children are diagnosed or being tested for coronavirus, then the government health advice is that you will be required to stay in isolation.  This may affect your normal co-parenting routine. 

It’s better to be prepared and have this conversation in advance.

Work out what you will do, how you will both manage and you what you will do if the children are disadvantaged in time with the other parent. 

It’s best if you can be flexible, considerate and accomodating. Most of all, be child-focused. 

If being in quarantine is a contravention of existing orders then I recommend the following. 

  1. If you normally communicate directly, email or phone your co-parent and advise them of the current situation. Talk rationally, calmly and sensitively about the situation at hand. Be considerate that this may disrupt their routine and may require a short adjustment period for them to consider. It can be a good idea to flag a conversation with an initial message that says “we might have some disruptions due to the coronavirus. I was wondering if we could talk this through?. Can I call at (time)?”
  2. If you have, or feel you need a lawyer, contact them and ask them to communicate with your co-parents lawyer about the current health status and any anticipated changes in parenting time. 

If you are the parent who is not with your children and the children can not be safely returned to you for your scheduled time, remain calm. These are exceptional circumstances and eventually, life will be returned to normal. 

These are my recommendations

  1. Communicate calmly, openly and with a child-focused approach. 
  2. If quarantined, facilitate FaceTime calls for the children with their other parent.  
  3. Act on specific medical or government advice only.  Do not listen to advice from well-meaning friends or social media. 
  4. Keep each other openly and honestly informed in relation to the health status of yourselves and people the children may have come into contact with. 
  5. Some people who have compromised immunity disorders may be on specific advice to remain in social isolation at this time. This may be extended family such as grandparents.
  6. If you or the children are NOT diagnosed or being tested for coronavirus, then shared parenting should continue as normal. 

Please remember, we are ALL going through something unusual. Keep calm and keep communication open, honest and sensitive to the fact that we are all dealing with something a little unknown. However, there is no reason to panic. Calm communication is your best tool.

See our parenting after separation course for more tips on improved communication.

The Struggle of Parallel Parenting

The struggle of parallel parenting is real! Parallel parenting is the term given to a style of parenting that is adopted by some parents, most frequently when there is a high level of conflict and a low level of communication. What it means in practical terms is that each of you will parent differently.

VERY differently.

When we talk about this struggle it does not necessarily apply to all. For many families, this is the best approach for the least amount of conflict and it can work extremely well. However, for some, it presents frequent challenges.

There may be one set of rules in your house, and another in the other parents home. While it would be conveniently easy to say what goes on there is none of your business, it’s also quite difficult to accept this when you feel the children aren’t being cared for as you’d wish.

There is a saying that’s appropriate here and it always comes to mind for me when helping parents through these frustrations.

Your level of happiness is determined by the difference between your expectations and reality

Having an expectation that things are going to change can be fraught with disappointment. I’m not suggesting you lower your standards or those you wish for your children, but sometimes it’s beneficial to take stock of what’s within your power and what’s not. Then work out what, or how, you might be able to influence a different outcome, and let go of everything else.

The most common issues arising for those who parallel parent are:

  • Child bedtimes or other routines.
  • Activities, or lack of
  • Attention to homework or after school activities.
  • Decisions affecting the children made without consultation.

Parallel parenting can be a challenge for one, if not both of you. When conflict is high there is a tendency for at least one parent to be quite opposed to any suggestion or routine which is adopted in the other home.

But all is not lost. There are some simple steps you can apply that will help make this path smoother.

Minimise the opportunities for conflict

This may be through minimising time spent in each others company, especially at handovers or when the children are present. It does not have to mean eliminating it altogether unless you feel that is absolutely necessary. It is helpful for the children to see you together at times, and being courteous to each other in the presence – if that is at all possible. If it’s not possible, keep contact minimal and courteous.

Communication Skills

Communication Book

A common tool is for the parents to use a handover book to communicate important things about the children. This may be about changes in pick up, school uniforms, planned holidays or other occasions.

Try a communication app

There are many parent communication apps on the market today. In some cases, you can employ the services for a third-party mediator to monitor your communication or to call upon if you need help.

Our Family Wizard and Parenting Apart two common applications you might wish to try. Otherwise, try google for parenting apps.

Choosing your battles

This is quite a big subject however with every conflict if you consider a few key questions it can help to prioritise where this sits in the hierarchy of matters to focus on.

  1. What will the children lose or benefit from in relation to resolving this conflict?
  2. How important is it to resolve this right now?
  3. Are my assumptions or thoughts about this outcome (the outcome you want) legitimate?
  4. What will be the follow-on impact of pursuing this?
  5. How successful is my approach likely to be?
  6. Is there another way to approach this?
  7. Is this something I can let slide?

Parallel parenting can be hard, however, it is manageable if you both can remain child-focused. Think of it as solving a puzzle. How can I piece this together so it makes more sense and is less frustrating?

Countering Arguments Against Shared Parenting in Family Law

Have we reached a tipping point in the child custody debate?

Despite strong public support and mounting empirical evidence in its favor as an ideal living arrangement for the majority of children of divorce, shared parenting as presumption in family law has historically been met with skepticism among some legal and mental health professionals. In a recent article in the Journal of Divorce and Remarriage, I describe how the past 40 years have produced three distinct “waves” of arguments against shared parenting, and how these have stalled meaningful legislative reform toward the establishment of shared parenting as a legal presumption, placing the burden of proof on shared parenting proponents to defend their position and demonstrate its efficacy, in a way that supporters of more traditional sole custody arrangements have not had to face.

The first wave of arguments was advanced in a manner that considered the idea of shared parenting of children by parents in conflict after divorce as an outlandish proposition. Three distinct arguments were made to discredit the concept:

First, it was asserted that children have one primary attachment figure to whom they become bonded, almost always the mother, and that any period of separation from the primary attachment figure will damage children’s development and compromise their well-being. At the same time this argument was advanced, however, reformulations of attachment theory emphasized the fact that children typically formed primary attachments to both parents, that these attachments were equally important for children, and that children tenaciously continue these attachments in changing circumstances, including after divorce.

A second line of argument was then put forward, stating that child development would be compromised when children move back and forth between two homes, “bounced around like a yo-yo,” with constant movement, two sets of home rules and different parenting styles. The research on children living in two homes found, however, that children themselves generally did not report such problems, and that sustaining attachments with both of their parents protected them from the adverse child development outcomes often accompanying divorce. In fact, lengthy separations from either primary attachment figure were found to be detrimental to child development.

Finally, a third argument was made that it is harmful to child development to disrupt the caregivingstatus quo, and that mothers should thus retain their role as the primary day-to-day caregivers of children. Research suggested otherwise, however: shared care of children was becoming the norm in two-parent families and disrupting shared parenting would in fact be more likely to lead to instability in children’s lives.

The second wave of arguments against shared parenting were presented as more concentrated and in-depth rebuttals of the concept, especially in situations where parents disagreed or were in conflict over child care arrangements after divorce. First, it was argued that shared parenting after divorce exacerbates parental conflict, and that children would be drawn into the conflict if shared care arrangements were imposed on families. Shared parenting, therefore, is only suitable for parents with little or no conflict and who get along well as co-parents. Again, research findings challenged this viewpoint: in actuality, an adversarial “winner-take-all” approach to child custody exacerbates parental conflict, leading to adverse consequences for children, whereas conflict is reduced in shared parenting arrangements where neither parent feels marginalized from his or her children’s lives. Further, research demonstrated that children do better in shared care arrangements even if there is conflict between the parents, and that sustaining both relationships is a protective factor for children in high parental conflict situations. Not all conflict is bad for children. Ongoing and unresolved conflict, however, is harmful to children; in such situations, rather than depriving children of a relationship with one parent, interventions to reduce conflict and support child development, such as assisting parallel parenting, therapeutic family mediation, and parenting education programs, were found to be most protective of child well-being. In response, a second critique of shared parenting was then advanced within the “second wave”: in high-conflict families, shared parenting exposes victimized parents and children to family violence and child abuse, and a legal presumption of shared parenting will allow abusive parents to continue their reign of terror in families. This argument, however, misrepresented the position of shared parenting proponents, who made clear that a legal presumption of shared parenting should always be rebuttable in cases of violence and abuse, as in such cases the safety of children and victimized parents is the primary consideration.

The third wave of arguments against shared parenting acknowledged that shared parenting may be beneficial for most children and families of divorce, including those in high conflict, but cautioned against the use of presumptions in family law, arguing that the best interests of children are different in each individual case, and that judges should retain their decision-making authority when it comes to post-divorce living arrangements for children. In response to this viewpoint, it has been pointed out that research on post-divorce outcomes for children and families has now established which living arrangements are most likely to support healthy child development. Without a legal presumption, judges make decisions based on idiosyncratic biases, leading to inconsistency and unpredictability in their judgments. And with two adequate parents, the court really has no basis in either law or psychology for distinguishing one parent as “primary” over the other.

It may be asked, then, after 40 years of debate, whether we have now reached a tipping point, when researchers can conclude with confidence that the best interests of children are commensurate with a legal presumption of shared parenting responsibility after divorce. Summarizing the state of current research in two recent special issues on shared parenting in the Journal of Divorce and Remarriage and the Journal of Child Custody, leading divorce scholar Sanford Braver asserts, “To my mind, we’re over the hump. We’ve reached the watershed. On the basis of this evidence, social scientists can now cautiously recommend presumptive shared parenting to policymakers…shared parenting has enough evidence [that] the burden of proof should now fall to those who oppose it rather than those who promote it.”

References

Kruk, E. (2018). “Arguments Against Presumptive Shared Parenting as the Foundation of Family Law: A Critical Review,”  Journal of Divorce and Remarriage, 59 (5), 388-400.

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