TCD Study of Irish Separation Agreements Finds Shared Parenting Trend Emerging Among Separated Couples
Posted on: 01 February 2011
The Office of the Minister for Children and Youth Affairs (OMCYA) recently launched (January 31st 2011) Post-Separation Parenting: A Study of Separation and Divorce Agreements made in the Family Law Circuit Courts of Ireland and their Implications for Parent-Child Contact and Family Lives. This Study, which was funded by the OMCYA and undertaken by Dr Evelyn Mahon of the School of Social Work and Social Policy at Trinity College Dublin, is based on cases audited in Irish Family Law Courts.
Speaking at the event, OMCYA Director General, Mary Doyle, welcomed the findings of the Report and said: “I am pleased that Ireland is following the practices of many countries with shared parenting increasingly being agreed on in Irish Courts.” This practice of shared parenting is promoted by the United Nations Convention of the Rights of the Child and the European Convention on Contact Concerning Children.
Also speaking at the event, Dr Evelyn Mahon, Principal Investigator, provided an overview of the key findings emerging from the study, including the important role Family Law Courts play in directing on-going relationships between children and both of their parents after separation and divorce. Dr Mahon also outlined some of the challenges faced by separating parents and noted specifically that “few ex-spouses received any maintenance payments making the financial well being of the post-separation family dependent on the residential parent’s employment income and that child maintenance payments when awarded, varied considerably, and could be in arrears exposing children to a risk of poverty.”
Dr Mahon also presented findings in relation to custody outcomes, both contested and uncontested, identified the factors which lead to sole custody being granted to one parent and gave insight into ‘access issues’ raised in court, including relocation plans, holiday arrangements, digital contact, gate-keeping by residential parents and the effects of new ‘blended’ family formations on existing contact agreements. Here she found that “while the majority of children of separated parents reside with their mothers, new forms of shared care are emerging among Irish couples as fathers seek to retain ongoing regular contact with their children.”
Post-Separation Parenting: Summary of Main Findings
Legal separation and divorce:
Divorce legislation was introduced in Ireland in 1997 amid concerns about whether divorce would pose a risk of poverty and material problems affecting the welfare of spouses and children in first families. Separation and divorce are embedded in prescriptive Constitutional legislation towards proper financial provision for the spouse and children of separating couples. This study focused on the following issues: 1) the disposal of the family home and attendant financial settlement; (2) spousal and child maintenance; (3) custody and parental residential care of children; and (4) access and contact between non-residential parent and children.
87 judicial separation and divorce cases 9 separate maintenance cases, 34 access applications and 3 custody cases were observed.
Family home:
Among the 63 home-owners, mothers (33) were more likely than fathers (7) to remain in the family home. Approximately half of these mothers, mostly with children, were given the family home in a compensatory package (in lieu of maintenance) or because of paternal desertion of the family. In the case of the other mothers (14), they made a financial settlement with the father that recognised his equity in the home. There were also 6 cases where the father retained the family home, but in a similar fashion paid their wives for their equity share. In the sole case in which the father got the family home, his wife had deserted him. Three mothers were permitted to reside in the family home for as long as their children were dependent.
Spousal maintenance payments were very rare and noted in only 2 of the 87 separation and divorce cases analysed. The outcome of these agreements was that many post-separation parents and their children were on low incomes, and at risk of poverty. When mothers cannot work because of childcare demands, the lack of spousal maintenance undermines the ability of the residential parent to care for their children.
Child maintenance payments
Child maintenance payments were specified in 54 of the 87 cases analysed. The amount of payment varied considerably, ranging from €140 to €3,000 per month. In a few cases, child maintenance payments were in arrears and wives had to take their husbands to Court to ensure payment. Without maintenance low-income mothers and their children were exposed to high risks of poverty. Currently, there is no standard recommended rate of payment for child maintenance.
Custody and parental residential care
Chapter 5 examined the custody arrangements made by parents in the 87 cases analyzed. Joint custody was awarded in 70 of these cases, while sole custody was made in a further 11 cases. In the remaining 6 cases, the couples’ children were teenagers or grown-up so the Courts were reluctant to make custody orders, or specify their place of residence. Sole custody orders were made for two reasons. The first was because of one parent’s unfitness to parent due to the risk (usually of violence or alcoholism) they posed to the spouse or children. The second reason was paternal desertion of the family and the father’s failure to maintain any contact with his children; 6 of the fathers had gone to live abroad, while 2 had returned to Ireland and had second families. While joint custody was the norm, this in effect was primarily joint legal custody. However, arrangements for the physical care of the dependent children varied between couples who had joint custody. In 63 of the cases, the primary residence of dependent children was with their mother, while fathers were the residential parents in 6 cases. However, 8 couples decided to share the care of their children on an almost 50:50 division of time during the week. A further 4 couples shared care by one parent having the children at the weekends. In addition, 2 couples divided their children between them, with the girls living with their mothers and the sons with their fathers. Older children chose which parent they wanted to live with or how to divide their time between their parents. In general, the majority of couples were able to agree on their childcare arrangements; for a minority, it generated ongoing conflict.
Access and contact
The 34 access cases (in which contact with one parent was considered a risk to a child’s welfare) raised serious questions about access as being always in the best interests of the child. In such cases the Court initially granted supervised access with specified contact time on an initial basis. If these arrangements were satisfactory, the time component would be increased. The expectation was that once access was initiated and ongoing, it would lead to greater acceptance of it over time, to the mutual benefit of both parents and children. Several issues were raised in access cases taken to court after separation and divorce. These included: time and logistics of getting to their children, holiday access, and continuous digital contact with children, and relocation plans. In addition, new ‘blended’ family formations (where people re-marry and have a second family), coupled with the fragmentation of the first families often rekindled access disagreements. The Court promoted and ordered access in the context of parental objections. This research concludes that a child’s right to have contact with both parents in current separation and divorce legislation is upheld and promoted by the Family Law Courts.
The Court’s role in reducing conflict between couples
The overall context of a no-fault divorce system and the long period of separation required before getting a divorce tend to reduce acrimony in Court. In the cases audited in this study, Judges actively discouraged any discussion of past conjugal roles and misdemeanors. Spousal behavior had little impact on agreements or on child custody or access (apart from the few ‘unfitness’ cases mentioned). This can still seem unfair to some parents and form the basis of antagonism related to access.
Children’s voices:
The care and future of children is articulated in the context of children as dependents of their parents. The rights of teenagers to decide with which parent to reside with was duly recognised while in one case Judges listened to the views of young children in chamber.
Parent-child contact
More recently, the focus on father-child access has been raised nationally and internationally by the Fathers’ Rights movement. This has helped to generate a social climate in which social contact is supported and encouraged by the Courts. In addition, the UN Convention on the Rights of the Child and the European Convention on Contact concerning Children (which came into force in 2005, but is not yet ratified by Ireland) are creating an awareness of children’s rights to parental contact with both parents. In practice, this study found that the Irish Family Law Courts played a major role in implementing the contact rights of children. These Conventions are leading to the promotion of shared parenting in several countries and this study found a number of cases where shared parenting was agreed in Irish Courts. The Courts are also upholding the rights of fathers to have contact with their children and in general promote such contact in cases where fathers have lost contact.
Trinity in the News: