When couples separate questions relating to arrangements for their children can become an emotional nightmare. Parents can find it very difficult to separate their roles as parents from that of spouse or even their inner child. Emotions of anger and hate can make it very difficult to discriminate between what is right and wrong. This is bad news and bad timing for the children, the innocent victims of the parental separation, as the sole question should be what is in the best interests of the children?
The arguments for and against a starting point of equality have been debated and have shifted over the decades. In a lot of cases this question has had more emotional than practical significance because the parents lifestyles, demands of work and finances and the children's school and out of school activities often determine the best practical arrangements for the children. However, although it is an emotional question it is also important practically because it is best for the children for both parents to be engaged with their children. If there is a presumption of equality both parents then feel recognised as a parent, which helps to reinforce their individual sense of responsibility for the child.
Some countries for example some States of the United States of America and Australia have a starting point of equality written into their laws. In England that is not the case. In England the question is entirely within the discretion of the court.
So what factors are relevant? What do you think is relevant? Well, in a case in England in 2006 Lord Justice Thorpe said the following were relevant:
*That the child had a strong attachment to both parents and was happy and confident in both homes.
*There is a real proximity/closeness between both parents homes.
*There is a real proximity/closeness to the child's school.
*The child has a real sense of belonging to both homes and a real familiarity with both.
*The child has a clearly expressed perception that she has 2 homes.
*There is a relativity fluid passage for the child between the 2 homes.
*There is a relatively fluid passage for the child between school and the 2 homes.
*After separation there is evidence that care has been shared by the parents.
This is a welcome advance in Judges thinking as not so long ago there was more or less a presumption against shared parenting unless the circumstances were exceptional. In practice this often led to the other parent feeling cut off from his child, disengaged, his status as parent ignored by the courts, which had a detrimental effect on his relationship with his child. Giving sole rights to one parent in effect gave power to that parent which could readily be abused as often there was a state of hostility between separated parents, which hostility could also arise later as new partners entered the scene. This hostility is therefore a case of potentially adverse effects of divorce on children.
Parents can now talk these issues through in family mediation, which is now more prevalent and readily available than in the past. Anything that can reduce the emotional and psychological effects of divorce on children helps children to cope with divorce and parental separation. Divorce Mediation is in fact compulsory in some court systems as a means of conflict resolution.
A good example of clear and realistic judicial thinking of positive benefit to children was that of Lord Justice Wall who in an English case in 2004 stated that shared responsibility orders: " emphasises the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents. The order can have the additional benefit of conveying the court's message that neither parent is in control and that the court expects parents to co-operate with each other for the benefit of the children." In another case the court made the point that a shared order was a safeguard against the non-resident parent being marginalized.
It used to be the case that a court would only consider making such an order if the parents were able to communicate with each other and the arrangements were working well. However, in English law at least there is a non-intervention principle. Accordingly the starting point is that a court does not make orders for children unless it is necessary to do so for reasons of the children's welfare. This means that the parents have joint parental responsibility, which carries on regardless of the state of the marriage/relationship. Hence they are expected to make proper arrangements for the welfare of their children and the court does not usually need to get involved in those private arrangements.
In a 2006 case Lord Justice Thorpe stated, " A harmonious relationship between the parents is not a prerequisite of a shared care order. Indeed the presence of that sort of harmonious relationship is a contraindication of a shared residence order since both parents would fall within the no-order principle ".
Regrettably, however, the UK government has rejected putting into law a presumption of equal rights to equal time with their children after parental separation. In a government paper in 2004 it stated, "The government does not, however, believe that an automatic 50:50 division of the child's time between the parents would be in the best interests of the children".