As topics go, this one is highly charged!  The “Dads R Us” brigade are not for the faint hearted but then I am not faint of heart.   I have spent some weeks now looking at this area.  This arose because of a case I became involved in where the Dad was looking for 50% of time with the children.  Something struck me as a little off about this since it involved sitting down and literally counting the hours she had as opposed to him.  I started to think about this and the more I reflected the more complicated this matter seemed to become.

I was struck by certain ideas as I researched this topic.  I went on loads of the Dad’s websites and one thing leaped out at me and that is the tendency of Dads to see themselves as the victims of a historical conspiracy which benefits Mum and opposed to Dad when it comes to children.  Nothing could be further from the truth.  Historically, women had no rights to their children whatsoever.  Children were seen as the Father’s property and women saw their children if their ex-husband allowed them to do so.  Many women who left their homes when their children were small did not see them again until the children were adult.  It is only in modern times that women have acquired rights of their own in family breakdown circumstances.  Women fought hard for those rights particularly over the last century.  So the situation in which Dads find themselves is relatively new and not a historical problem.

Modern Irish family law really starts in the 1980s with the passing of the Judicial Separation and Family Law Reform Act 1989.  Prior to that it was difficult and expensive to get a separation from the higher courts and the grounds were very restrictive.  Those who could, entered into separation agreements, and the rest just parted and left things to legal chance, a route which often led to disaster for many people, particularly for the later partners who had no rights whatsoever and no way of acquiring rights.  Many used the District Courts as an informal separation route by applying for a series of reliefs under various pieces of legislation, for example, spousal support, child support and directions in respect of custody and access.  However, no separation order was made and those courts had no power to deal with property /succession rights/ larger money/ insurance/company/pension or investment issues.   At the time those separations were referred to as the poor man’s separation.  I was practising in the mid to late 1980s and like most practitioners, I cut my teeth in the District Court.  I remember those District Court applications and I believe that there were a number of factors at play which I think it would be instructive to recall. Firstly, the vast majority of Judges at that time were men and they had been raised in an era when men went to work and women looked after children.  Their instinct was to protect women and children, that is how they had been raised.  Secondly, most of the women who came before them were primary carers of their children and had been all along and thirdly, most if not all, of those women did not work.  This began to change very significantly in the 80s and 90s when many more women were appointed to the bench and with the passing of the 1989 Act referred to above.  Married women began to go to work in significant numbers and this in turn made a huge difference to child rearing.  Increasingly, there was a relaxation of the traditional rigid roles that married couples had assumed after marriage and for the first time men were empowered to show affection and nurturing in both public and private.  Because of these societal changes and I have only touched on some of them, it became apparent that some men were getting a raw deal from the courts in marital breakdown.   It took longer to shift judicial opinion to match growing dissatisfaction in the community.   Still, slowly but surely, it did change and it is now commonplace for orders of joint custody to be made by the courts.

The second misunderstanding that needs to be cleared up is the difference between Guardianship, Custody and Shared Parenting.  In Ireland, all married parents are automatically guardians of their children which means that whether living together, separated or divorced, each parent has decision making capacity where their children are concerned in the larger areas of the children’s upbringing.   These areas include education, welfare (physical and mental) religion and such like. This means that parents have to consult one another about where the children go to school, the subjects they take in school, whether or not they receive religious education or practise a religion, health issues and so forth.  If a parent is not consulted or if the parents can not agree, then they have a right of action to court.  You will note that I have emphasised that these rights accrue to parents who are or were married to one another.  The law in relation to single people who are parents is different.  Unmarried Mums are automatically guardians of their children whereas unmarried Dads are not.  Unmarried fathers do not become Guardians of their children as a result of their name being on the birth certificate.  There are many different schools of thought on the merits of unmarried Dads having the same rights as married Dads and it is for another article. Custody (a rather archaic and not very enlightened term) refers to where or with whom the children are primarily resident and who makes the day to day decisions for them.    The general legal definition in the USA of joint or shared custody is that both parents have legal rights and responsibilities for the major decisions that concern children.  However, in Ireland, as I have already explained, married parents already have those rights so there is much misunderstanding here about what joint custody actually means in Irish law.  The truth is that joint custody does not have a great deal of meaning in Irish law.  If you look at the wording in settlements and separation agreements you will see that the phrase,” joint custody with primary residence to the ‘x’ “ is the way it is generally set out.  Joint custody is an acknowledgement that parents are jointly responsible for their children and are joint carers and providers for them.  It does not mean equality of time or equality of day to day decision making.  Much confusion results from these terms.

What then is “shared parenting”?  The term was enshrined in legislation in Australia under the Howard government.  It has proved controversial and much research is currently being undertaken as to the effectiveness of this legislation.  Prior to the passing of this legislation in 2006, a committee was appointed to investigate this issue.  It recommended a clear presumption of equal shared parental responsibility except where there is conflict and abuse.  It stopped short of recommending shared custody, that is, the child spending equal time living with each parent.  As you can see the Committee’s understanding of shared parenting was a mixture of our Guardianship and joint custody but it did not mean a 50/50 split of time with the children.   The committee fell short of what Prime Minister Howard had promised which was a 50/50 split in time.  The Family Law Amendment (Shared Parental Responsibility) Act 2006 is expressed in terms of equal shared parental responsibility rather than equal time sharing.  However, the court is asked to consider the children spending equal time with each parent.  There is an implicit assumption here that there is a direct correlation between the time a child spends with a parent and the quality of that relationship.   Courts have tended to look at parenting in a mathematical way.   The effect in Australia is that many parents feel pressurised, because of a perception of what the court is likely to do, to enter into joint parenting plans which they themselves are not able to implement and do not think will work.

There is no doubt that if Dads are relegated to visitor status this gives rise to problems.  Children need to have a good meaningful relationship with both parents.  I have written numerous articles emphasising the importance that each parent has for a child and how children’s identity and security is tied up with their relationships with both parents.    Bearing that in mind, I do not, however, think that it follows directly from there that children are better off if they share equal time with each parent.  Is equal time a goal worth pursuing in and of itself or is the health and wellbeing of the children the first and primary goal?   When it comes to actually counting up who gets the most time and making a big deal about a few extra days either way then I believe that parent’s values are skewed.

There is no doubt that in some cases, equal time may work and work well.  I have come across a few such cases but generally the children are a little older and can travel under their own steam back and forth .   Some of the research coming from Australia would indicate that the age of the children is a very important determining factor in how time is divided.  The suggestion is that younger children particularly those under 4 years, need to spend solid time with a primary parent rather than be moving back and forth between parents.  Children over 10, on the other hand, may be able to sustain longer periods away from a primary parent.  Sometimes we tend to look at the children in a particular family as a block whereas in fact, their developmental ages may indicate that it would be more appropriate to consider them separately as well as together.  I am not advocating that children should be split up for access all the time but I am suggesting that it might be appropriate some of the time.  Older children might benefit from a more adult encounter with the other parent and one on one rather than being lumped in constantly with much younger children.   Other factors affect equal parenting time such as geographical proximity, ongoing conflict, ability to cooperate, financial comfort, family friendly work places and shared confidence in each other’s ability to parent.

Sometimes people think that if they have the children 50% of the time then they do not have to contribute any financial support.  Again this is a misunderstanding as it depends on the relative needs and circumstances of each parent.  There is no doubt that ongoing conflict and a complete failure to cooperate will make any attempt at equal time parenting a living nightmare and not just for the parents.  It is worth pointing out that in researching this article I came across many websites of the children of divorced and separated parents who said that growing up they had found equal time parenting a nightmare.  They felt that they were denied a place to call their own, home in other words.  One retired US Judge with her own blog has written “If children are made to live equal time with each parent – instablility and a sense of no home base” is the result. Irish judges, I suspect, are a long way from blogs as yet, but I would think that their views would be similar.  If you have ever had to live out of a suitcase for a sustained period of time, then you might have some idea of what it might be like for a child to live in an shared time zone.

It is important to note that often how much time each parent spends with the children is often decided long before the parties get to court.  If, as parents, one of you has always been largely responsible for the children doing the day to day things with them, looking after their appointments, ferrying them around the place and ensuring they are fed etc., then it is unlikely that a court is going to favour a 50/50 shared parenting arrangement, no matter how passionately it is argued.  If one parent has sacrificed his or her career by common agreement between the couple, then why would a court favour giving children to a parent for large tracts of time when that parent will be unavailable and will almost certainly have to hire someone to mind them.

What is important in parenting and what will dictate the quality of the relationships after separation or divorce is that arrangements are child friendly and work for the children, that the parents are co-operative with each other and are equally determined to make arrangements work and both are child focussed and that children are never, but never, drawn into conflict covertly or overtly.  If we are to reduce conflict then going to court is not an ideal approach.  Far better to consider the alternative of collaboration which not only ensures that you and your ex have to start talking again but it also helps you to learn how to re-communicate to take account of your new status.  Your children will thank you for it.