My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Thursday, February 10, 2011
When a marriage breaks down it is not unusual for the fact of the breakdown to serve as a wake up call to Dad. In the US such Dads are called “divorce activated dads” which is rather cruel but makes the point succinctly. Mums can often feel quite bitter about divorce activated dads, particularly when such Dads are asserting their rights. From a child’s point of view , however, it may be an unforeseen bonus to the divorce that suddenly Dad is on the scene. Whatever Dad’s motivation, his involvement with his children is to be devoutly encouraged for their sake. I have said it frequently and often – children’s self esteem will be seriously impaired if their relationship with a parent is compromised as a result of a separation or divorce. Therefore, no matter what the cost, it behoves parents to foster the love and respect of their children for each of them and to do nothing to impair that relationship. When we become parents, that is what we sign up to and it is a sacred trust. The only exception is where one or other parent is actively harming the children in an abusive way. So what happens to the non-custodial parent who slowly and painfully builds up a relationship with their children after separation and divorce? Parents who live together have the society of their children with very little effort. They interact with them seamlessly. Parents who are no longer in the house lose that casualness, that effortlessness and their relationship becomes somewhat forced, artificial. It takes time and effort on the part of that parent to build up those relationships again so as to ensure that they are still Dad and not some visiting Uncle. To do this, they need to establish new traditions with their children, get to know them in very different ways than when they lived with them and exercise understanding and patience in very testing circumstances. Picture then the vulnerability of this parent after all that effort and time who is then faced with the news that the custodial parent is relocating resulting in the inevitablility that their relationship with their children will change yet again and maybe seriously eroded. For Mum who continues to be the parent with primary responsibility and frequently borderline poverty, it can often seem a very lonely and isolating place.
Cases for relocation tend to be highly strategic in their presentation. The person seeking to establish the move as being the best option will present a glossy portfolio of pictures of the intended new residence and schools. Glowing accounts of extra curricula opportunities and brochures from fabulously well endowed schools including letters from perspective headmasters/headmistresses. In addition a strong case will be made to show how the staying parents’ rights will be barely affected because of proposals for block access. In contrast the staying parent will present detailed accounts accompanied by photos establishing the extent of their relationship with the departing children in poignant detail. Reports from the children’s schools will show how well they are doing in those schools. If a child has a special talent or interest which requires nurturing in a certain environment then much will be made of that. Relationships with friends and extended family will be emphasised. And while all this tugs at the heart strings, we need to cast a cold clinical eye on it. On close examination the custodial parent’s reasons for travelling may have little to do with the child/ren and sometimes the non-custodial parent may not have much of a real relationship with the child/children. A non-custodial parent who has not availed of an opportunity to see children when there were opportunities is in a poor position to argue. Equally, if a moving parent establishes a strong economic need to travel and the party arguing against the move has a poor track record of payment and the payments are small, they will have a difficult time of it before the court. As one West Cork Judge colourfully put it in a case of mine “A fellow would have better standing with the court if he was working and contributing financially”. Sometimes the children are of an age where the impact on parental relations is somewhat less because they can manage their own contact and travel. An analysis of the interests of all parties can sometimes allow us to decide with confidence whether or not the custodial parent should relocate or not. Bearing this in mind, it still remains the case, however, that many people have substantial reasons for relocating just as those objecting have substantial interests.
How is a Judge to decide such cases? Should there be legislation setting out the criteria by which the courts would determine these issues? Where should the burden of proof lie? In other words should the moving parent have to establish why the move is a good idea or should it be up to the parent objecting to the move to make their case? Is it desirable or even possible to have a coherent policy on this issue or should it be decided on a case by case basis? It seems fairly clear that except for the few cases where there is absolutely no good reason for moving, it is almost impossible for a Judge to get this one right. The test in Irish law is the best interests of the child/children. However, are a child’s interests served if a parent is forced to reside in a particular jurisdiction or lose custody of the child? How will an unhappy parent impact on a child? In the USA the trend has been to permit relocation based largely on the view that what is good for the parent is good for the child.* This assumption went largely unchallenged until a piece of research undertaken and published in 2003 1*. This research which was by no means conclusive and raised as many questions as it answered. The study, as reported in the media, appeared to establish that children whose parents moved away from the other parent, were significantly disadvantaged by the move.2* This in turn suggested that courts should give greater weight to the child’s separate interests in deciding such cases. But how do you focus in on a child’s interests as a determining factor? There is little guidance on this. Comprehensive research and empirical data is thin on the ground. There is the added complication that a court cannot order a parent to stay in a jurisdiction. And even if it could, would that be desirable? After all, the non custodial parent can relocate at any time with just as potentially devastating consequences. At best all a court can do is threaten to move custody if the parent relocates or in fact move custody if the parent relocates. This is to use the children as pawns in a judicial game, the game of “call the bluff”. In my view such games are not in the children’s best interests, whether it is parents manipulating their children to want to relocate or to want to stay or the court.
It remains a fact that most moves away are undertaken for economic reasons or for reasons of support. The best outcomes for children post separation and divorce are dependent on good working joint custody and access arrangements and being in reasonable financial circumstances.3* Parents who locate reasonably close to one another and who share the care and management of their children offer the best protection to one another against the threat of relocation. The more involved the non custodial parent (being the parent with whom the children are not primarily resident) is with the children the more likely he or she is to contribute to their support and education. To have effective parenting arrangements means little conflict. Parents ought to be aware that high levels of conflict have been associated with poorer physical health in adolescents. 4* In general the courts would be mistaken to assume that children will necessarily benefit from being moved away just as we cannot establish with any degree of conclusiveness that moves cause children substantial harm. So what should we do in this situation? As always we should put our children first and there is no doubt that growing in the society of both of their parents is the best outcome for children. Are such relationships fostered by taking court actions against one another or engaging in trench warfare against one another? Surely the answer must be obvious, that they are not. I can think of little more calculated to really “do for a relationship” or what is left of it than giving evidence against one another or subjecting one another to rigorous cross-examination. When a relationship breaks down there is naturally lack of trust and conflict. We know that conflict impacts seriously on the mental welfare of children and also their physical well being. We know that lack of trust will breed hostility and lack of cooperation. We know that when we are angry, our anger infects ourselves and our children and makes them and us unhappy. We need to take steps to build up the trust and minimise the conflict. A tall order! Yes it is, and it will require sacrifice and effort. It is hard to give up a grievance, just as it is hard to give up cigarettes, even knowing that both are bad for your health. However, there are people who can help. Lawyers who have trained collaboratively and in mediation and who will endeavour to work with you and your spouse towards transition and resolutions, collaborative coaches who will help you with parenting arrangements and work on communication skills and financial specialists who will give you sound non positional , family orientated economic advise. All these people working together offer you the best chance of achieving a new trust and minimizing conflict. This is your best guarantee of a successful outcome for your children and for you.
What if it still happens that even after all that collaboration, a parent still decides to relocate? Well that can happen even with the best will in the world. Families are not static. Is that a reason for running into court? Does it mean that the collaboration was unsuccessful.? Was there a complete breach of trust? Well it depends on the reasons for the relocation. Hearing these in a calm, managed environment, where both of you are held in such a way that you can actually hear one another, still offers the best hope for both of you to work through such a possible relocation and hold firm to the principles of trust and lack of conflict that are so important to the health of you and your family. If a parent is moving with the children and on top of that there is lack of trust and conflict, then the hope for a future productive relationship between the non moving parent and the children is minimal. This in turn has negative impact on the children’s health and wellbeing but also frequently on the family purse. Parents who do not see their children and have a limited relationship with them frequently stop paying towards their children’s education and support. So, maintaining the trust is, as always, key to this and going to court is one sure way to destroy trust.
*1. Fabricius,Braver & Ellman – 2003 Journal of Family Psychology. (Commonly referred to as the Braver study).
2. “Does Moving After Divorce Dmage Kids” Norval Glenn and David Blamkenhorn. Article raises some thought provoking points on the Braver Study.
4. Mechanic & Hansell, 1989.