Monday, February 20, 2012

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.


  1. You need to come work here, with me. This merits a much longer response - but I am just about to go to bed - so I will save up what I have to say for tomorrow...Yx

    1. My dear, I could never do your job, though I would love to be able to say I have the emotional strength and emotional intelligence to cope with the demands of that kind of work. I admire you in the extreme for what you do.

      Looking forward to hearing your further thoughts.

  2. It is hard, isn't it. I do feel parent always have rights, unless they are really bad/ neglectful/ abusive... which only a court can decide.
    A friend of mine is in a similar situation. New husband, expecting a baby, little 4 year old loves new daddy. The old ones has many issues. But he is still her dad.... My friend struggles with what to do (she has sole custody now but let him have her separate weekends) Now he just has not picked her up for a month, seems not interested. Poor little girl. She worries whether to leave it or push him. I think she is leaving it as little one does not seem bothered. Yes, only have kids with someone you trust. But how do you know this for sure? Will they change.... pffff. Just don't get separated, my husband and I say ;)

    1. I must admit that after hearing some quite distressing stories from friends and acquaintances who are trying to share parenting with a former spouse, I will do just about anything to make sure my marriage stays even reasonably on track. I am one of the lucky ones - ultimately, my husband is one of life's "good guys" - but even so it has been really hard sometimes. I am sure that for many couples, staying together would be much worse than trying to share parenting post-separation...

  3. What shall I write? I am so glad that you looked into this issue K, because, I hope it helped you feel less anxious about your friends situation. I think that no matter which parent you are, it is hard to be away from your children. It is also hard to trust the other parent to do their best if you yourself have trouble communicating with them. But, you can't worry about the things that you can not control. The best you can do is to ensure that you are approachable so that your children can tell you if anything goes wrong when they are away. Other than that, life is a work in progress..... that is as much as I know so far...

    1. You are SO right, and as usual so wise, Lake House Writer. Surely it is all about being the best parent you personally can be to your kids, and (as you say) gaining your children's trust so that they can really talk to you about anything that's worrying them.

      It still upsets me to think how hard it is for people who would like to make a clean break from a marriage that was destroying them as a person, but can't do that 100% because their ex-spouse is their children's other parent. Cannot see anything that can be done about this, though, and it makes me a bit sad.

  4. Made me think of this nugget:
    "Friends come and go, enemies accumulate."

  5. It is hideous, isn't it. The pain we adults inflict upon children. The area of childrens rights is sadly one of the cinderella areas of social policy, welfare and justice. Under-resourced. largely dependant upon charities (often exceptionally good and offering insightful sensitive targeted support for vulnerable children) and upon very stretched public servants.
    My experience has taught me that there is a massive gulf between legislative intention and the practical impact (isn't that always the case!). Here (as in most jurisdictions in the developed world) the emphasis is upon "minimum intervention" and acting "in the child's best interests". The difficulty occurs when the child's best interests (which should be paramount) are compromised by a)consideration of the minimum intervention (in family life) principle and b)the under-resourcing of child services.
    The biggest gap is that the child's views are seldom adequately captured or even given sufficient weight. In any unpleasant contested custody case there ought to be a curator ad litem or safeguarder or childrens rights advocate (all with relevant qualifications in representing children and understanding developmental needs) representing the child. This does not mean that there is undue pressure on a child (no child should be subjected to court appearances unless of an age and desire to do so) - but that there is an independant professional advocating on behalf of that child, forcing the adults to focus on the childs needs as opposed to their own.
    Intervention requires to be early (and possibly pre-birth in some cases). And twin-tracked. a) intensive support with a view to holding the family together and b) at the same time, assessment of whether long-term rehab of the family unit is realistic and if not a readiness to take action to remove.
    There ought to be greater investment and emphasis upon education in schools re parenting studies. There is a pc way of achieving this that wouldn't offend too many overly sensitive souls...
    All too often women (predominantly) put violent partners or drug/alcohol addicted partners or sex-offender partners before the needs of their children. There are many psychological reasons for this of course - but it happens on a regular basis. "love" truly blinds.
    Divorcing or separating couples should enter into mandatory mediation when considering fighting custody battles.
    Ultimately what we are asking from our judicial services is that they exhibit the wisdom of Solomon...attempting not to damage a vulnerable child any more than they might already be... Distressing all round.
    Katriina - you are more than up to my job!

    1. Thanks for leaving such a detailed and insightful comment. I have been reflecting on it for days now.

      It was interesting that you mentioned the child's views. Under current Australian law, it seems that the child's views are only among the "secondary" considerations that a court takes into account, and perhaps they should be given greater weight? I suppose a lot would depend on how old/mature the child is (e.g., would surely be difficult to force a 14 year old to spend time with a parent if he/she did not want to do so).

      It was also interesting to hear about the "minimum intervention" principle - not 100% sure what this entails in your jurisdiction, but it sounds a lot like what the law used to be in Australia, i.e., try not to disrupt the child's status quo too much (which, to my understanding, very often meant the mother being given primary custory of the child). What do you think of the concept of a rebuttable presumption that it is in a child's best interests to have significant and substantial time with both parents, and for parents to share the parenting as far as possible? It seems to me that this would necessarily result in quite big changes in some children's lives. I still can't quite make up my mind whether this grand concept of a meaningful relationship with both parents is truly aimed at serving the child's best interests (since current Australian law clearly protects parents - especially dads - who formerly might have been all but excluded from their children's lives because of the limited role they'd played in parenting their child pre-separation...) Maybe it truly is an honest attempt to achieve balance in a child's life, but I do wonder what the effect is in practice, especially for very small children.

      I agree completely that parenting preparation classes in high schools would be a great idea. Also... most schools require teenagers to do work experience. Why not a week of "parenting experience", e.g. making teenagers spend a week with a stay-at-home parent with young children, or at a day-care centre?? Or, requiring them to spend a few days sitting in on sessions in the Family Court? I don't know if it's still possible, but when I was at law school the Family Court's sessions were rarely closed to the public, and we were required to do a certain number of hours of court observation. I found it a huge eye-opener, and a highly challenging experience emotionally.

      So much to think about, and very few clear answers one way or the other...

  6. Hi there. Thanks for the reply...
    Yes, I do feel that it is very important to listen to the child. But we need to do that in a very sensitive child-centred age-appropriate way - and that is (or can be) difficult and resource-heavy, demanding trained professionals. We try - here - to ensure the childs views are heard. But too often this can be lip service.
    Our family courts are closed courts. (or are meant to be! - because there can be an inappropriate variation in shreegal practice (our judges are called "Sheriffs" in our principal courts) and some courts develop their own peculiar local practices (especially there to trip up unsuspecting agents from outside the area!!). Certainly child protection cases are heard in closed court. This means that it is impossible to experience this side of law until you actually practice...not good really.
    Do I think that a rebuttable presumption in favour of such shared custody is a good concept....? Mmmmmm. I am afraid that - on balance - I don't. The greatest danger with that is the very thing you point out - that the child's best interests become the secondary consideration in a fight between parents.
    I do feel that mediation should be attempted. But the difficulty with that is (I speak as a trained mediator) that coercion is not really conducive to positive mediation and a good outcome either...
    It is a minefield. And too often I despair at the damage done to children in the name of parental "love".
    PS The "minimum intervention" principle is best explained as follows-
    The Children (Scotland) Act requires courts and children's hearings to consider whether the making of an order or supervision requirement is likely to bring about a better outcome for the child than making no order. Courts in both private and public law proceedings are required to apply the same test. This has been variously described as: the 'no order' or minimum intervention principle, the non-intervention principle and the principle of minimum necessary intervention. These statutory provisions limit compulsory intervention by the state in the legal relationships between parents and children to the minimum necessary to ensure adequate safeguards for children.

    Minimum intervention as expressed in the Act relates to judicial decision-making by courts and children's hearings. However, minimum intervention also appears as a guiding principle for professional practice. Statutory guidance states that one of the themes in support of the legislative framework for children's support and protection is that, so far as is consistent with safeguarding and promoting the child's welfare, public authorities should promote the upbringing of children by their families and any intervention by a public authority in the life of a child must be properly justified and supported by services from all relevant agencies working in collaboration.

    Phew....! You managed to survive that!!

    1. Not only did I manage to survive that, but I actually found it intriguing, law junkie that I am...

      Interesting to read about the minimum intervention principle. If I remember correctly, the current Australian act says something along the lines of "parents should remember that the courts are a last resort, and they should try their darndest to settle things outside that forum". This is not quite the same thing, but I think the principle is similar, i.e., try to let families find their own solutions. It's so hard, because sometimes (for whatever complex reasons) they just can't, and yet I also think that courts and public authorities can only do so much to be of real, lasting, meaningful help once the family unit breaks down.

      Having said that, I hope you have moments in your work which make you believe that it is possible to help particular children and their parents. We can but try, and try, and try...