Parents Are Forever

A family friend in Australia is separated from the father of her child. She left him for various reasons which are less than clear to me, but let’s just say that, at the time, her family breathed a collective sigh of relief.

Perhaps unsurprisingly, since then she and her daughter’s father have spent a great deal of time fighting over how much time their little girl (who is now 5) should spend with each parent.
 

Currently, pursuant to a court order, Child spends about half her time with each of them. When I heard this, I admit feeling surprised. It was acknowledged in court that Dad has some issues that need the attention of a therapist. Dad is strapped for cash. Dad has repeatedly accused more than one of Mum’s relatives/close friends of sexually abusing their little girl, who has been taught to yell at her grandmother “Don’t touch me!” It is unclear how diligent Dad is when it comes to regularity of meals, baths, and bedtime. Child, who is now 5 years old, goes to stay with her Dad every Thursday night, and frequently returns to Mum on Sunday evening wild with exhaustion and with nits in her hair (not to mention small sores on her scalp where she has scratched at them).

Granted, I don’t know Dad personally and have not had a chance to hear his side of the story, but I was still a bit surprised at how equally the court had divided parenting time between Mum and Dad.

Law geek that I am, my curiosity led me to delve into the relevant sections of the Family Law Act 1975 (Cth) which has changed quite dramatically since I studied it. As I understand it, current Australia law presumes that it is in a child’s best interests for both parents to have a meaningful involvement in that child’s life and to share parental responsibility, except where there is a reasonable belief that a parent has abused the child or engaged in family violence. A court making a parenting order will try, wherever possible, to share parental responsibility equally between parents. Where it isn’t practicable for the child to spend equal time with each parents, the court will at least try to ensure that the child spends “substantial and significant time” with each parent (i.e., time that includes normal weekdays, weekends, and holidays, and allows a parent to be involved in the child’s daily routine and occasions/events of particular significance to the child).

In making a parenting order, secondarily the court will consider literally any fact or circumstance that the court thinks is relevant (including things like: any views expressed by the child; the willingness of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the practical difficulty and expense of a child spending time with a parent; and the capacity of each parent and other caregivers to provide for the child’s emotional, intellectual and other needs). However, it must be noted that these are secondary considerations that take a back seat to the all-important attempt to ensure shared parenting.

My take on current Australian law is this: if you are a child’s parent, you have the right (and the duty) to have a go at parenting that child. You are supposed to try hard to be a good and responsible parent and provide for the child’s physical and emotional needs, you must abstain from violence, and you are supposed to interact and cooperate with the other parent in matters of parental responsibility, but apart from that there are not really any hard and fast rules.

We live in a society where parenting standards are not prescribed. As long as you don’t actually assault your children or fail to provide them with the necessities of life, day to day you can parent them according to your own personal ideology. There are no binding laws prescribing what time a child should go to bed at night, what exactly you should feed them, which people you should allow them to meet, what you should do to prevent them getting lice in their hair (and what should be done if they do), or what you can and cannot teach them about life and about the people around them.

If you don’t honour the other parent’s wishes as to these details, the worst that could happen is that the other parent can show evidence to a court of your failure to act in the child’s best interests, but for the most part I imagine it would be very difficult to translate “I don’t like my ex-partner’s style of parenting” into compelling reasons why a court should limit your child’s time with that parent.

Current Australian legislation seems to be trying very hard to emulate, artificially, what would happen naturally when children have two parents of average intelligence and with a normal sense of responsibility, who love each other, live together in reasonable domestic harmony, and act as a team. In those “normal” situations, the two parents are often with their children at the same time, they each know their children and his or her routines reasonably well, and it's natural that they would jointly make decisions as to that child's life.

It should be remembered, though, that two parents who live together are also able to keep each other’s parenting in check minute-to-minute and day-to-day. They tend to put a stop to behaviour in the other that would otherwise be considered unwise, rash, too aggressive, emotionally disturbing for a child, reckless, socially unacceptable, or just overly dramatic.

When two parents are estranged, these checks and balances cannot take place naturally. The law says that parents who have separated are to have shared parental responsibility and must consult with each other, and the court has to assume that each parent will step up and do his or her responsible best. However, the reality is that neither parent can know for sure what really goes on once the child is within the other parent’s domain. Mum is required to trust Dad (and vice versa) with the welfare of Child under circumstances where Mum and Dad’s mutual love and trust have been so irreparably damaged that they are no longer together. Mum and Dad each just have to hope that the other’s love for Child will guide their actions and make them do the right thing.

The other tricky thing is this: most children want to spend time with their parents, and most parents want to spend time with their children. However, if you are separated from your child’s other parent, each minute of quality time your child spends with that person is time spent away from you. You are required to ignore your internal imperative to be close to your child, and instead are required to consider, rationally, that it is in your child’s best interests to spend time with someone else – someone who is perhaps the last person you yourself want to spend time with.

And yet, what would be the alternative to this system? That the “better” parent gets full custody and the other parent barely gets to see the child? What does “better” actually mean? – the one who plays with the child more? The one with the better job and the nicer home? The one with fewer issues that can be identified by a trained observer? The one who tries hardest to implement the teachings of Supernanny? The one who the kid chooses?

The reality is that parenting isn't a competition. The law cannot be seen to be judging parents against each other, and awarding extra one-on-one time to the "winner", because the rules of parenting are so vague and subjective that it would never be a fair contest. Besides, even in the face of what could objectively be considered to be "good" parenting, we cannot forget the simple fact that, as my Family Law professor once observed (with some sadness), “Children bond even with the most inappropriate of parents.” Small children don’t see their parents’ flaws. They love their parents fiercely, unconditionally, and sometimes even unjustifiably.

Family Law tries hard to find solutions in difficult situations, but the truth is that families and the law are a very bad fit.

The moral of this story is simple: don’t have children with a person unless you are as sure as you can be that he/she would be a good and responsible parent. Think about whether you could trust that person implicitly with your child for days on end if you were not present. Consider that this person will be in your life at least until your child is 18, whether or not you love or live with each other.

After all, you can choose to end a relationship with your partner, but that person will always be your child’s other parent - always and forever.