When it comes to child custody agreements (or parenting arrangements as they’re known in Australia) after a divorce, what is best for the children involved? Do children have rights regarding access to both parents, and should these rights be enforced?
The United Nations Convention on the Rights of the Child (1989), as well as the European Union Charter of Fundamental Rights (2011, Article 24), mandates that children should be allowed to maintain meaningful relationships with both of their parents. In parallel, the father’s involvement in rearing and childcare tasks in the family has grown significantly in recent decades, which in association with the salience of mothers’ engagement in labour market participation, has called for new family arrangements that need to be taken into account in public policies.
Most importantly, recent studies have clearly demonstrated that children’s ongoing relationships with both parents are vital, regardless of children’s age and situation. These convergences raise the question about needed reforms in social-legal policies and the therapeutic practices focused in post-divorce/separation relationships and living arrangements, in order to improve the welfare, development, and the “best interests” of children whose parents live apart.
The right to maintain regular relations with both parents
The Convention on the Right of the Child, Article 9-3, emphasizes “the right of a child separated from both parents or one of them to regularly maintain personal relationships and direct contact with both parents, unless it is contrary to the best interests of the child.”
This right is most salient to situations of parental separation, referred to in Article 9-1, which states that, “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.”
However, neither children’s rights nor the definition of their best interests is a straight forward definition, either in the Convention or in family law. These concepts need to be interpreted according to the unique situation and circumstances of each child. This interpretation falls under the responsibility of the judges, but it is also the concern of international organizations focused on the well-being of children. Thus, a 2014 conference under the aegis of the Council of Europe concluded that: “There is no comprehensive definition of the concept [‘best interests of the child’], and that its vagueness has resulted in practical difficulties for those trying to apply it. Some suggest that ‘best interests’ should therefore only be used when necessary, appropriate and feasible for advancing children’s rights, whereas others see the flexibility of the concept as its strong point.”
Current research converges in the results on the consequences of different residential arrangements of children whose parents have separated. The large-scale studies conducted in recent years are enlightening.
Research from Sweden and other jurisdictions shows that young children (3-5 years old) who live in equal shared parenting have a level of well-being equivalent to that of the children from intact families. Parents and teachers, on the other hand, note psychological problems in children living mainly with one parent. Identical results are shown with teenagers aged 12-15. These results are independent of the socio-cultural level of parents. A study with 5,000 teenagers aged 10-18 confirms and clarifies these results: neither children in equal shared parenting nor their parents are disadvantaged or hampered for changing frequently their place of residence. In Norway, a study with more than 7,000 teenagers aged 16 to 19 does not show significant differences between teenagers living in equal shared parenting or nuclear families in terms of their physical health, their emotions and their social behaviour.
On the other hand, in all cases and on almost all indicators, children and teenagers living in a single parent residence are disadvantaged. This does not mean that only sole residence is the cause of this situation.
Studies conducted in the United States show that these benefits are also valid for very young children, under three years. Regardless of the level of conflict of the parents, their degree of study or income, the more time very young children are able to spend with their non-primary carer, the healthier and more balanced their long-term relationships were.
In Australia, the Family Law Act makes clear that:
- both parents are responsible for the care and welfare of their children until the children reach 18, and
- there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
Other research, including a review conducted by the University of Oxford for the UK Department of Social Policy and Intervention, has found:
- There are benefits to children of having a meaningful relationship with both parents after separation.
- The best interests of children after parental separation are most strongly connected to the quality of parenting they receive, the quality of the relationship between their parents, and practical resources such as adequate housing and income – not to any particular pattern of care or amount of time.
- Quality of contact is more important than the frequency of contact.
- Good outcomes for children were more likely when non-resident fathers had positive relationships with their children and took an ‘active parenting’ role, including both warmth and setting boundaries.
- That there is no single optimal amount of time that benefits children. What is clear is that there is no evidence showing a clear link between the amount of shared time and improving outcomes for children.
- Shared time arrangements work well when they are child-focused, flexible and cooperative. They are almost always arrived at by private agreement without involvement of lawyers or the courts.
- Children are more likely to feel positive when shared time arrangements are flexible and child-focused, when their parents get along and when they have input into decisions about the details of their living arrangements.
- Frequent moves between households bring added practical and emotional difficulties for children, but the level of difficulty depended on a range of factors including distance between homes, frequency of moves, level of conflict between parents and the child’s personality and preferences.
- High on-going parental conflict, family violence and abuse, and rigidity makes shared parenting difficult for children and the stress and burden outweighs the benefits.
if you need assistance with any aspect of separation, divorce or parenting arrangements, please contact our friendly, experienced team today. We offer a FREE, 10-minute phone consultation.