Post Separation Parenting in Ireland

Transcription

1 Post Separation Parenting in Ireland Paper presented at Post Separated families and shared residence Evelyn Mahon Post Separation Parenting a study of Family Law Courts in Ireland 1

2 National Children s Strategy Its goals are that: children have a voice; children s lives will be better understood children will receive quality supports and services this study examines the implications of separation and divorce on Parent Child Contact and Family Lives Post Separation Parenting a study of Family Law Courts in Ireland 2

3 History of divorce Judicial Separation and Family Law Act th Amendment to Constitution1995 Family Law (Divorce )Act 1996 A Art (iii) such provision as the Courts considers proper having regard to the circumstances exists or will be made for the spouse, any children of either or both of them. Post Separation Parenting a study of Family Law Courts in Ireland 3

4 Constitutional effect Family Law Maintenance of Spouses and Children Act 1976 Family Home Protection Act 1976 Family Law Act 1995 Family Law (Divorce) Act 1996 Protected wives interest in family home Post Separation Parenting a study of Family Law Courts in Ireland 4

5 Conjugal focus The main focus at that time was on the marital couple especially dependant wife Hence Section 20 stipulation (see Box1 ) IRISH FOCUS Wives as dependents Fathers as breadwinners And fears of bye bye daddy Post Separation Parenting a study of Family Law Courts in Ireland 5

6 External influences UN Convention on the Rights of the Child (CRC) Article 9.3 says that states shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child s best interests Post Separation Parenting a study of Family Law Courts in Ireland 6

7 European Conventions European Convention on the Exercise of the Children s Rights (CECR) adopted in 1996 Prescribes that in family proceedings the voice of a child can be heard Convention on Contact Concerning Children (adopted 2002 into force 2005) (CCCC) Parents and children have a right to regular contact with each other which can only be restricted in the best interests of the child Post Separation Parenting a study of Family Law Courts in Ireland 7

8 Post Separating Parenting International and European Legal Context Is timely..there is a growing awareness of children s rights of access to their parents fathers rights of access to their children Post Separation Parenting a study of Family Law Courts in Ireland 8

9 Sociological literature on divorce and children Parental conflict has a negative effect on children Children were at risk of poverty Children lost contact with parents (fathers) Post Separation Parenting a study of Family Law Courts in Ireland 9

10 Policies to reduce conflict Mediation (instead of court) Agreement (couple) Non adversarial legal approach No fault divorce Child focused approach encouraged Not in front of the children Post Separation Parenting a study of Family Law Courts in Ireland 10

11 Poverty risk factors Family home ownership Income of residential parent Post separation finance settlement 1.Compensatory 2.Rehabilitative or 3.Egalitarian Post Separation Parenting a study of Family Law Courts in Ireland 11

12 Child s income depends Child maintenance Spousal maintenance of residential partner School fees, VHI etc. Post Separation Parenting a study of Family Law Courts in Ireland 12

13 PARENT CHILD CONTACT Custody : joint or sole Residence of children : share or not? Access when access to children is a source of conflict Post Separation Parenting a study of Family Law Courts in Ireland 13

14 Parent child contact Custody: is it sole or shared? Residence: who does the child live with? Contact time between the non residential parent and children Is contact facilitated by parent? Is access an issue between couples? Post Separation Parenting a study of Family Law Courts in Ireland 14

15 Study of cases in court Variables used: Future of family home Joint or sole custody Residential arrangement for children Spousal maintenance ordered Child maintenance ordered Parental income (if dependent) Access agreements Post Separation Parenting a study of Family Law Courts in Ireland 15

16 Financial Settlement Model No Maintenance Paid as well 1a Mother gets family home b Father gets family home Mother buys our family home Family home is sold and proceeds divided All family property assets are divided 6 4 5Father buys out family home,pays mother Mother retains right to reside in home Mother gets tenancy of council house Private rented accommodation No information 8 9 Total Post Separation Parenting a study of Family Law Courts in Ireland 16

17 Custody orders 70 cases joint custody 11 cases sole custody 6 no orders made older children could make their own Post Separation Parenting a study of Family Law Courts in Ireland 17

18 Joint custody Joint custody and liberal access Is the norm in Ireland. But what does it mean in practice? It is agreed between parents but we need further research on actual lived lives of postseparation parents. Post Separation Parenting a study of Family Law Courts in Ireland 18

19 Why sole custody? (1) a spouse was seen as a physical threat to the child or spouse Physical violence and history of barring orders in many of these cases.. With a sole custody order access to child has to be supervised and Post Separation Parenting a study of Family Law Courts in Ireland 19

20 Desertion (2) parent s earlier desertion of their family a failure to maintain contact access to children not exercised by the fathers No maintenance paid / Had lost contact with children (? Reflect lack of earlier legislation in Ireland?) Lost their right to father due to default practices.. Post Separation Parenting a study of Family Law Courts in Ireland 20

21 Joint Custody? It is not defined in Ireland.. But used widely in courts.. It has assumed a meaning since legislation was enacted Residence is also a key term used in court So joint custody is probably best understood as legal custody, while residence is Physical custody ( akin to early US distinction). Post Separation Parenting a study of Family Law Courts in Ireland 21

22 Residential care arrangements No of cases Reside with mother 63 Reside with father 6 Shared residential care with each parent 8 Weekends with one parent 4 Children allocated between parents 2 Child free to choose residence 3 Child with maternal grandmothers 1 Total 87 Post Separation Parenting a study of Family Law Courts in Ireland 22

23 Reside with mother The dominant pattern reflects mothers as primary care givers during the marriage ; It also related to the parent who remains in the family home as seen earlier.. So it facilitates continuity for children Post Separation Parenting a study of Family Law Courts in Ireland 23

24 Reside with father Primary residence with father is rare but based on change in gender roles of fathers: In 2 cases mothers had mental health problems and limited access 2 cases father remained in family home 2 cases mother was in new relationship with new children Post Separation Parenting a study of Family Law Courts in Ireland 24

25 Shared residential care 5 couples shared care of their children using a week on, week off Friday to Friday arrangement, children aged 13 and above 2 others a few nights with father and one night and a weekend per week was arrangement 4 spent all weekends with their fathers Post Separation Parenting a study of Family Law Courts in Ireland 25

26 Child share In case 51, 15 year old stayed with father (Mon Fri) and mother at weekends while other brother spent one week with father then one with mother 2 cases sons lived with their fathers while Daughters lived with their mothers. (gendered sharing) Post Separation Parenting a study of Family Law Courts in Ireland 26

27 A variety of typologies Equal sharing was more likely when each parent worked full time and when each had a house Likely to be middle class Weekend care an interesting option might have reflected working time patterns (did not have that information ) Post Separation Parenting a study of Family Law Courts in Ireland 27

28 Children s freedom to choose In 3 cases Judges did not make a residence or a custody order said children were free to choose which parent they wanted to live with teenagers over 14 usually were granted this option Post Separation Parenting a study of Family Law Courts in Ireland 28

29 Typologies reflect new patterns Dual career families and shared parenting responsibilities (US studies) Primary breadwinner / housewife role older generations Family home/carer/trad role Emergence of fathers rights and new fathering ideologies. (Elena Moore s Ph.D topic). Post Separation Parenting a study of Family Law Courts in Ireland 29

30 New tensions Gatekeeping mothers New Fathers Share the children and share the costs? Is wife no longer the carer who has to be supported? Equal share of family assets? Presumed employment of mothers? Post Separation Parenting a study of Family Law Courts in Ireland 30

31 New terminology required? Report of Law Reform Commission has made some suggestions : Parental responsibility Day to day care Contact Post Separation Parenting a study of Family Law Courts in Ireland 31

32 Problems for some A small number have real and on going problems with access, which is generally more problematic at time of separation rather than divorce

33 Figures ,180 Judicial separations d 446 custody and access orders ,588 divorces granted 797 custody and access orders A variety of issues arose in cases audited.. Post Separation Parenting a study of Family Law Courts in Ireland 33

34 Access Issues Parent claims they were denied access But other parent responds: child does not want to see other parent Judges insisted that access take place as agreed at appointed times Post Separation Parenting a study of Family Law Courts in Ireland 34

35 Access not in best interest of child Is it just a form of gatekeeping by residential parent or is the other parent unfit to parent and unfit to have contact with the children? Court can request Section 20 report into child s welfare and circumstances The report can lead supervised access Post Separation Parenting a study of Family Law Courts in Ireland 35

36 Other parent is unfit to parent Parents can invoke this claim and call an independent expert to do a Section 47 report to facilitate the Judge s decision making.. Outcomes varied: limited supervised access Barring order respected Evidence based reports used by Judges to deny access (unless supervised). Post Separation Parenting a study of Family Law Courts in Ireland 36

37 Obstruction of access Judges insisted that access be provided in all of these cases where they were obstructions by a gate keeping parent No excuses (dancing lesson times etc.) could be invoked Very detailed time schedules in some cases Post Separation Parenting a study of Family Law Courts in Ireland 37

38 Variation in existing orders In a number of cases where one partner had formed a relationship with a new partner the second parent retaliated by reducing access time of other parent.. Judges insisted access arrangements must be adhered to maintain status quo Post Separation Parenting a study of Family Law Courts in Ireland 38

39 Travel time and access Many couples could not agree to take travel time required for access to take place into account when making arrangements Judges specified hours.. If parents wanted to increase access this was possible if agreed access was going well. Time could be extended etc. over time Post Separation Parenting a study of Family Law Courts in Ireland 39

40 Supervised access In response to Section 47 reports supervised access only was allowed Usually for a few hours supervised by A relative ; Progress could be monitored and access time increased if relations improved Post Separation Parenting a study of Family Law Courts in Ireland 40

41 Variation in access times Take children on holidays Negotiate access when father worked abroad Have digital access all the time Generally Judges promoted contact in all these cases Post Separation Parenting a study of Family Law Courts in Ireland 41

42 Relocation abroad If a spouse want to leave the country this can be seen as their right But Judges upheld a child s right to contact a mother s wish to relocate was denied needed serious proof that the welfare of the child would benefit from a move overseas Post Separation Parenting a study of Family Law Courts in Ireland 42

43 Relocation within country Cases showed a reluctance to grant permission to relocate within a country if one parent objected Judges showed a respect for father child contact and access Post Separation Parenting a study of Family Law Courts in Ireland 43

44 Conclusions Parent child contact promoted in courts Age of Child key to hearing child s voice Small access issues indicate underlying antagonism and conflict and hurt emotions New parenting patters emerge and are negotiated not always easy Post Separation Parenting a study of Family Law Courts in Ireland 44

45 Recommendations More research on new family formations Increased knowledge of family law Poverty risks of separated parents Focus on children s rights and Shared parenting Recognition that marriage is an implicit contract you can divorce the spouse but not the children Post Separation Parenting a study of Family Law Courts in Ireland 45

46 Terminology Joint custody Residence Contact Post Separation Parenting a study of Family Law Courts in Ireland 46