Are We Now Moving Towards Joint Custody of Children Following Separation?

When couples separate, particularly when they separate acrimoniously, fights over property can be stressful and hurtful. It is however the disputes over the care of children that cause the greatest anguish. Where the care of children cannot be resolved by counselling or mediation and proceed to Court for a Judge to make a determination then it is likely that the outcome will result in one parent being happier than the other. Judges dislike having to make such decisions and would rather the parties reach their own settlement. After all it is parents that know their children better than anyone else. However, if agreement cannot be reached a judge must make a decision. The question to be answered is “what is in the child’s best interests”. The Judge will listen to the parties and may also be assisted by an opinion from a psychologist or social worker. At the end of the day however there is no such thing as a “right” decision. There is simply a decision that is the best possible on the available evidence.

By far the majority of parents settle these matters short of a Court hearing. Most people have sorted out the care of children well before they see their respective lawyers, if indeed they need to see lawyers at all. Where they haven’t finally resolved matters a referral to counselling is often successful in sorting out the remaining issues and assisting the parties generally through the emotional turmoil that follows most separations. If solutions aren’t reached at this stage then no custody battle goes straight into a defended hearing, there will first be at least one mediation conference chaired by a Family Court Judge. The success rate of such mediation conferences is very high indeed. So generally speaking it is only the tough 5% or less cases that end up in a defended hearing.

It is a characteristic of that “tough 5%” that need to be resolved by Court hearing that emotions are often inflamed, and bitterness, distrust and enmity is deeply entrenched. In extreme cases children are arbitrarily taken, sometimes concealed from the other party. Such cases attract keen media interest and the disaffected parties are only too keen to put their case to the media.

A number of lobby and pressure groups have arisen to right perceived injustices. Some of them have become quite active, in particular the men’s group that in recent times has picketed various judges and lawyers that it has deemed unsympathetic to men’s parenting rights.

There have been changes in the law in recent years. In July 2005 the Care of Children Act came into effect, replacing the earlier Guardianship Act. In, perhaps, an attempt to get away from words that were perceived to have negative connotations, we no longer have “custody” orders and “access” orders. Personally I have always thought that those words were plain and simple and widely understood but they have now gone, certainly in terms of legal proceedings. We now have “parenting” orders which generally incorporate “contact” provisions.

One change of a more substantial nature has been to specifically recognise in the legislation (it happened anyway) that children’s views must be taken into account. The extent to which they were taken into account will depend on the age, maturity of the child and other facts and circumstances. It’s often a balancing act between ensuring that the child’s rights are respected against the inappropriate delegation of responsibility (and the guilt and accountability that might accompany such onerous decisions).

Against that backdrop there has been a definite shift in policy regarding parenting cases.

Until comparatively recently it has been more common than not that children, particularly young children, are based primarily in one household. It has been thought that children have a strong need for stability and certainty. From that base of stability and certainty they could then spend some shorter periods of time with the non-custodial parent. Some psychological studies and research backed up such an approach. In particular I recall being told about 20 years ago by a leading child psychologist that children under the age of 3 lacked “object constancy”. Apparently until the age of 3 when the child sees mum disappearing from his or her field of view she is incapable of knowing that mum will thereafter return, and this will cause anxiety. This was put forward as a reason for not allowing non-custodial parents to have overnight access with children under the age of 3. I have to say that at the time I struggled with this because quite a number of my clients were happily sharing the care of children under the age of 3 without any apparent ill effects being shown by the child. I put this query to another prominent psychologist who answered that that might be so but who could say what long term damage was being sustained. There is no way, of course, of knowing that.

Recently, however, there has been a body of work completed in the United States by a number of psychologists which has seriously challenged this way of thinking. Psychologists Joan Kelly and Robert Emery in the United States have, along with others, been conducting various long term surveys of children whose parents separated. They have also looked at the prevailing views and philosophies espoused by other psychologists. Some of the conclusions they have come to confirm earlier findings and will not surprise most readers. For example, Robert Emery finds “A major stressor for children is persistent conflict between parents following separation and divorce”. In other words the more you fight after separation, however strongly you believe that you are right and your former partner is wrong, the worse it is for your children. I work from time to time for the Court acting for children in parenting dispute cases and I often tell “highly conflicted” parents of this finding. I have yet to encounter one parent who did not immediately and instantly accept the truth of it.

A dramatic finding, perhaps less predictable, is the incredible benefits that can result where the parents receive even a small amount of what they call in the United States “Custody Mediation” and is probably a mix of what we term counselling in New Zealand, with perhaps some mediation as well. A group of parents were given an average of 5 hours of “custody mediation” and there were marked positive effects on both parent-child and parent-parent relationships that sustained right up to 12 years later, when compared with the group that did not receive such “custody mediation”.

The most surprising finding however for Family Court Judges and lawyers was the strong view expressed by children from broken relationships that they wanted, or would have wanted, to spend more time with the non-custodial parent after separation. The overwhelming majority of children or former children of broken relationships surveyed clearly indicated that they wanted to spend either equal or substantially more time, in the form of overnights, with their fathers (this survey was geared to the non-custodial party being the father). In this survey group the typical amount of contact reported (and this is consistent in other studies also) between the children and their fathers was every other weekend.

The reason that this finding has been illuminating is that in New Zealand and also in the United States, United Kingdom, Canada, Australia and most other western countries, it has become the norm for the non-custodial parent, often but not always the father, to enjoy access or contact with his or her children every second weekend with perhaps an afternoon or an evening in the intervening week. The rationale extended for such a regime has been that this allows the children one weekend of “quality time” with the custodial parent, in their own home base where their friends have access to them, and is least disruptive to their schooling and extracurricular activities. It’s all sensible and reasonable. Unfortunately it doesn’t appear to be what the children want.

These views and philosophies are in the process of being transmuted into policies at this moment. At the tax payers expense Joan Kelly has been brought to New Zealand to deliver lectures to Judges and lawyers and administrators. Robert Emery was a recent guest speaker at the national Family Law Conference in Christchurch late last year. Judges and psychologists are citing, favourably, the findings of these psychologists in their decisions and opinions respectively.

There is however one caveat or exception to the increasingly widely held view that children should spend more time with the non-custodial parent. If the non-custodial parent is violent or abusive or allows the child to witness violent or abusive conduct towards the other parent (and that need not be physical violence, it could be verbal violence as well) then the children will not benefit from increased time with such parent. In particularly bad situations that contact will need to be restricted and perhaps supervised, certainly until there are signs of a behaviour change in the offending parent.

It needs also to be recognised that in every case the time that the child spends with each parent has to be tailored to the realities of life. Increasingly both parents may need to work. The requirements of that work, or perhaps the responsibilities arising out of new relationships and/or new families, or living in different cities may mean that in practical effect the optimum model of care is not appropriate or possible. Plus, it is a model. Some children need, for a variety of reasons, to spend most of the time with one parent. What Joan Kelly and her colleagues, however, have signalled is that it is necessary to look seriously at all sorts of different and alternative caring arrangements apart from that which had become almost conventional and established. The evidence suggests that not only can children live with and accept this, its actually what they want.