Shared Parenting Information Group (SPIG) UK

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Post divorce parenting - rethinking shared residence (part 3)

Arthur Baker, Lecturer in social policy , Barnsley College, and
Peter Townsend, Senior Lecturer in Law, University of Teeside.

Draft of article which was published in: Child and Family Law Quarterly, Vol 8, No 3, 1996, p 217

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The obstacles

Although there may have been gathering support for the practice of shared residence there still remain a number of obstacles and obstructions. Perhaps the greatest of these is judicial conservatism. Whilst the law now allows courts to make decisions which would promote shared residence, there is no guarantee that the courts will do this. The Children Act 1989 stopped a very long way short of presumptive shared residence and, whilst the guidance is positive on the shared residence order, it states that, 'it is not expected that it will become a common form of order' (20). Judicial attitudes are still likely to be opposed to the general principle of shared residence. A timely review of the case law on shared residence orders is provided by Conway (21). In Re H (A Minor)(Shared Residence) (22) it was held by Purchas LJ that these orders should only be made in 'exceptional' circumstances. In this case there had been de facto shared parenting prior to the hearing. Cazalet J said 'almost invariably circumstances require that a child should make his settled home with one parent rather than the other'.

The current leading shared-parenting case is A v A (1994) (Minors)(Shared Residence Order) (23) where it was held that shared residence orders could be made where circumstances of the case were unusual rather than 'exceptional' . In her review of this case, Conway states that six principles could be extracted from the judgment;

  1. there must be something unusual in the case which justifies a shared residence order;
  2. there must be something for the benefit of the child in making the order before the circumstances can be so unusual as to justify the order;
  3. courts should be guided by the section 1(3) welfare checklist;
  4. the decision to make such an order is always at the discretion of the judge depending on the facts of the individual case;
  5. shared residence orders would be unlikely if there was still a major dispute between the parties;
  6. a general test of exceptional circumstances must not be imported into section 11(4) of the Children Act 1989.
In Conway's view it is difficult to envisage shared residence orders being made by the court in any circumstances where there is not already a de facto shared residential arrangement in existence prior to the hearing.

A review by Weyland (24) of judicial attitudes to shared residence since the implementation of the Children Act 1989, based on reported and unreported judgments, concluded that old assumptions about its unusual nature and its undesirability in most cases prevail, although it has been recognised that the courts do have the power to make such orders when they are clearly for the benefit of the children.

Judicial conservatism has been matched by a lack of enthusiasm for shared residence in some social work circles. Although there has been general support for the concept of joint legal custody and joint parental responsibility, the wider social work profession, with some exceptions, has not taken up the call for post-divorce shared residence. In the UK, child care policy and practice has tended to fluctuate between different ideological and value positions (25). An influential strand in this flux has undoubtedly come from the writings of Goldstein, Freud and Solnit (26) who argue that , 'the non-custodial parent should have no legally enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits'. Although the influence of this thinking has diminished, it has permeated some social work thought.

Other writers have argued that welfare professionals may operate a covert form of discrimination against fathers. Marsh (27) has made the point that British social work in the past has been ambivalent and uninterested in the role that fathers play within families. Other research by Fry and Addington (28) demonstrates how welfare professionals and teachers operate negative expectations of fathers. Abraham Sagi and Rachel Dvir (29) in a study of 216 Israeli social workers found that their subjects, when given hypothetical child custody cases to assess, were value-biased in their judgments. Even in the cases where the best interests of the child, as well as the knowledge now available on the subject, would suggest that the father should assume custody, it was seldom awarded by the social workers to the father. The authors suggested that because the workers were value-biased, their professional socialisation should be reconsidered. In a review of social work journals over a 27-year period, Grief and Bailey (30) found that the literature on fathers was sparse and that they were under-represented in the professional literature. Similarly, Jaffe (31) argues that fathers are the forgotten clients of child welfare services.

In the UK, social work assistance to the family courts is provided by the court welfare service, itself an arm of the Probation Service. British court welfare officers have not been proactive in arguing the case for shared parenting, the service generally has fallen into line with judicial conservatism and advocated the sole residence and reasonable contact model. A National Association of Probation Officers policy document on the role of the court welfare officer (32) does not adequately address the issue of shared residence adequately, in spite of its many references to gender equality; neither is the issue addressed in the recent Home Office strategy document on the future of the court welfare service (33) or in the recently published national standards for the court welfare service (34). Research carried out on the Court Welfare Service (35) based on practice in six probation areas has concluded that, ' a persistent theme was... the degree to which the data illustrate the differential treatment that fathers receive leading to their marginalisation in a number of key spheres'.

Some social work writing has, however, tried to deal with the issue of shared residence in a positive way. The growth of family mediation and a developing interest in post-divorce parenting plans has meant that the profession has re-examined some of its values. Of particular importance here is the contribution made by Kruk. In an important article published in 1993 (36) he argues the case for a post-divorce shared-parenting model supported by an interventionist family mediation approach and the development of parenting plans. He believes that mediation should promote the ideal of shared parenting, and is critical of what he calls 'the more short term, future focused neutralist mainstream model' of family mediation. In a later contribution he outlines the position of the disengaged non-resident father and spells out some implications for social work practice (37).

A further obstacle to shared residence is the importance of our cultural tradition and received ideas on sex and gender roles. In the past women have been seen as the primary caretakers of children, and because of this there has been great emphasis in child development studies and psychological theory on the mother / child relationship. The corollary has been a lack of interest in fatherhood and the father / child relationship. In terms of custody outcomes this has meant the evolution of a maternal presumption. The idea that fathers should be significant care-givers in a post-divorce situation sits uneasily with received notions of men as primary breadwinners and women as carers. In this context, fathers are assumed to be unable to look after their children and must prove their child care abilities, whereas mothers' competence is taken as given. Wallerstein and Kelly put it well when they said that one of the biggest obstacles to shared parenting was that 'it just isn't done'.

A highly original explanation as to why shared parenting has met with so much resistance has been provided by Kelly (38) who argues that opposition is connected to unconscious attitudes amongst legal and welfare professionals. She states that women professionals may feel a threat to the security of their own mothering role when fathers seek shared residence, with the result that there might be hostility towards fathers. There could be a similar effect when male professionals are involved since they may be forced to contemplate the strengths and weaknesses in their own role as fathers and the quality of the relationship with their children

There has been some feminist opposition to shared parenting. Becker (39) argues for a maternal deference custody standard where courts defer to a mother's wishes. The argument is that women invest more than men in child care, are more involved and have greater empathy with children. Custody awards should be made 'in light of the emotional needs of women and children'. For Becker even a sole custody / primary caretaker presumption does not protect the interests of women and children because of what she sees as a bias against women in the judicial system. Fineman (40) is also critical of shared parenting and supports a sole custody / primary caretaker presumption. She argues that there is a qualitative difference between the contribution that mothers and fathers make to children's welfare. She states that sole custody is the only way to ensure a good future for children by encouraging nurturing and concern for children in a concrete way. In the British context, Brophy (41) argues that shared parenting disempowers women because power relationships that existed before divorce would inevitably carry on in any future shared-residence arrangement. The argument put is that as men do not share child care within marriage why do they seek to share it when marriage ends?

There is, however, a split in feminist thinking on child custody. Becker, Fineman and Brophy represent a cultural feminism of difference. Another strand of liberal feminism puts a different view. Bartlett and Stack (42) present a feminist case in support of shared residence. They argue that a preference for shared residence is essential for any realistic reshaping of gender roles within parenthood. They say that only when it is expected that men, as well as women, take a serious role in child-rearing will traditional patterns in the division of child-rearing responsibilities begin to be eliminated. Whereas Hoggett has suggested that changes in the law are unlikely to lead to a significant increase in the participation of fathers in their children's upbringing (43), Bartlett and Stack argue that the law has an important expressive or symbolic power to alter social expectations and norms. They conclude their argument by asserting that joint physical custody preferences in law 'may contribute to a transformation of both male and female values, as men through parenting learn nurturance and co-operation in their intimate relationships and women learn independence without abandoning their values of caretaking'.

Scott (44) takes a feminist position between these two views. She believes that custody awards should reflect who did what prior to the split and replicate past parental roles; but she is critical of a winner-take-all system that ignores the reality of many modern marriages, where looking after the children is shared. She proposes a proportional custody standard, called an 'approximation' standard, where parents are given joint legal and physical custody in accordance with the distribution of responsibilities they assumed during the marriage. This would encourage co-operation rather than conflict in the resolution of custody disputes and lessen the destructive effects of bargaining in divorce. Scott concedes that her approach might disappoint those, like Bartlett and Stack, who believe that custody law can serve to change social norms, but she argues that her standard allows families to function according to their own values and preferences, whilst subtly encouraging a broader restructuring of parental roles.

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