Shared Custody of Children; a Rethink & Some Tips

Shared custody or equal time parenting is a hot topic in England at the moment with the announcement in the Queen’s speech last week that the Government will be bringing out a new Children and Family Bill in 2013.  One of the key elements of the Bill will be as follows (Department of Education Announcement):

“Ministers intend to strengthen the law to ensure children have a relationship with both their parents after family separation, where that is safe and in the child’s best interests.

The Government believes this will encourage more separated parents to resolve their disputes out of court and agree care arrangements that full involve both parents.

The Government will consult shortly on how the legislation can be framed to ensure that a meaningful relationship is not about an equal division of time but the quality of time that a child spent with each parent”.

This announcement has of course come out of the Family Justice Review which was published in November 2011 and to which the Government responded in February 2012.  Sir David Norgrove, the author of the Review, made clear that he did not support any kind of shared parenting initiative.  His reasons for saying this were largely as a result of lessons from Australia, where equal time parenting reforms were enacted in 2006 without research of the effect on children.  I attended the International Family Justice lecture on 1 May and Lady Justice Diana Bryant of the Family Court in Australia expressed regret that this had not been done.  She was candid enough to admit that the research which has now come out following the legislation shows that the interests of shared parenting took precedence over the best interests of the children.  This had led to damage to some children who had been forced to spend time with a parent who had been the perpetrator of domestic abuse in the household prior to separation.  The Australian 2006 legislation has been roundly criticised as being focused more on parents than on the children.

The Family Justice Review (FJR) in England was clear that it did not support any change to the legislation in England.  The evidence considered by the FJR concluded that people had very different ideas of what “shared parenting” was and in practice there tended to be more of an emphasis on quantity of time rather than quality of relationship.  The FJR stated that any further legislation risk creating confusion, misinterpretation and false expectations. This has certainly been my experience. The Government’s response was that they would carefully consider how the legislation could be phrased to take into account the difficulties experienced in Australia, and they stated that any changes will be in line with the Children Act 1989.  One of the fundamental bases of the Children Act was the “non intervention principle”, which injuncts the court against making any order unless it would be better for the child than not.  The normal rule should be that there is no order in children matters.  Therefore to have a positive presumption of equal time parenting would place a judge in direct conflict with one of the main principles of the defining child legislation in this country.

Putting aside therefore any worries about ordering shared custody of children (or shared residence as is the correct phrase) where there had been a record of domestic violence, would shared parenting be a good idea in general?

My experience based from my clients’ perspectives and personally, is that shared parenting should be the norm and indeed this is becoming the case. This prevents one parent from using their child as a pawn in a show of power against the other parent. The other parent buckles under the pressure simply because they want to see their child. In the most extreme of cases, that parent gives up, having witnessed the stress being put on the child.

So, yes shared parenting is a good idea, but not for all families. This is where the argument for shared residence/custody of children falls down. Not all parents want to have their children with them for 50% of the time. The judge should retain the discretion to decide what is in the interests of the children, on a case by case basis. How is that different to now? There should be more of an assumption of shared parenting in most cases, unless the circumstances really militate against that.

However it has been said that a child does not benefit from being moved constantly from one place to another and is left unsettled by this.  This makes sense not only from the aspect of physical things such as the toys, books and perhaps daily musical instrument practice, but also emotionally.  They may feel that they wish to speak to a particular parent about a particular issue on a certain night is unable to do so.  Or they wish to see a certain friend and are prevented from doing so because they are at dad’s instead of mum’s.

Do children benefit from having a “main” home?  Many commentators say that this is beneficial for children.  For some children this can work out fine but certainly as they get older, these arrangements will need to be altered to fit in with their own lives and their own interests.  The most important thing is for children of separated parents is that they can go easily from one parent to the other.  They do not feel that they are a possession of one parent or the other, and they do not feel bound to defend or support one, against the other.  If shared parenting is to really work, then these children must be given permission to have a good time with the other parent and there must be some measure of communication between the parties because there are times when days need to be changed or other plans made.  This is difficult if emails and text messages have to be sent as they may not always be answered immediately, leading to worry and frustration boiling over into anger and confrontation.

Here are my tips to help to have a good shared care arrangement:-

• Communicate with your      children.  Bring up conversations in      a casual way instead of asking “Why?” all the time which can close off a      conversation.  This will encourage      your children to talk about what they are feeling, particularly if this      has any bearing on the custody of children arrangements that you have      made.  Then praise your children for      having the courage to speak to you.

• Try to keep some channel      of communication open with your ex.       This is very important for the reasons set out above.

• Show your children that      you love them, despite their occasional bad behaviour.  Try to put yourself in their position      which may help you understand why they do what they do.  However that does not mean that you      shouldn’t discipline them.

• Consider family      counselling, for the whole family.       This is something which is essential for a good workable shared      care arrangement.  Even if you      despise your ex, the process will help you understand his/her actions,      even if you do not agree with them.

• Don’t criticise the other      parent to the child.

• Don’t make your child to      feel like it’s their problem.  It is      the adult who has gone through the breakup, not the child.

• Be sensitive of the stress      being placed upon your children of two sets of parents, two groups of      siblings and two different beds.  It      often means switching between different rules and routines and having two      homes, and yet feeling part of neither.       Children crave stability and their things become their      security.  Therefore value and      protect each child’s space and their belongings.

• Keep a calendar in a      prominent place so children know when they are coming and going.

• Where there are      stepchildren involved, allow the child to spend time alone with their      birth parent.

• Have realistic      expectations of your ex; they are not going to turn into the perfect      parent overnight, especially when they weren’t when you were together.

• Set appropriate boundaries      between you and try to establish smooth transitions between homes for the      children.

• Set the children as your      main priority.

If parents can get their act together about the children, then their children won’t be wracked with anxiety without having to please each parent or worry about who is going to be picking them up from school and packing their lunch bag the next day.  In a shared custody arrangement, the parents must let go of their conflict in order to focus on their children.

©Punam Denley, May 2012

Blanchards Law has a great deal of experience of residence/custody of children issues. Please contact us on 0845 658 6639 or by email at pd@blanchards.co.uk