When family law cases are contested, children tend to be at the heart of the dispute. In an extract from her new book, Carol Coulter, Legal Affairs Editor– who spent a year working in the family courts for the Courts Service – details three case studies
MORE THAN 90 per cent of family law cases in the Circuit Court are settled without going to a full hearing. However, among the cases that are contested, children emerge as the most contentious issue, featuring in 73 per cent of all disputed cases. However, issues like maintenance and the fate of the family home are often tried in tandem with the issue of children. They also feature in the other contested cases.
Most cases do not involve dependent children, with 63 per cent of them coming from couples who either never had children, or whose children are grown up. Women are more likely to initiate proceedings than men are, with 58 per cent of all judicial separation and divorce cases being initiated by women, as against 42 per cent by men. Women are even more likely to initiate judicial separations, but the figures are more evenly divided when it comes to divorce.
These statistics are contained in Family Law and Practice: A Study of Cases in the Circuit Court which is the first book to examine the workings of the Irish family courts. The statistics are based on an examination of one month’s case files from all family law cases concluded that month in Circuit Courts throughout the state.
Family Law and Practice: A Study of Cases in the Circuit Court will be published next week by Clarus Press
'Surely the father's ambition is to return to work?
A CASE IN the Midland Circuit involved a wife trying to change existing custody arrangements, where the couple’s four-and-a-half-year-old daughter spent alternate weeks with each parent, to one where she spent weekdays with her mother and weekends with her father. The husband opposed this.
The mother, who was from Eastern Europe, lived with her mother and her mother’s partner, and the household also contained a lodger. The father lived alone, but had an older son from a previous relationship whom he saw regularly. The father, who had been out of work suffering from depression, was on a back-to-work scheme, and this enabled him to tailor his hours in order to be able to collect his daughter from school on the week she stayed with him. The mother had a job, and her mother looked after the child when she was at work. At the outset Judge Con Murphy said: “What is decided today may not be the right solution in two, three or four years’ time. Things evolve. The issue is: where is she during the school-going week, that is, Sunday night to Thursday night? It is probably better regarding the future if she is in the same house every night. If something could be arranged by consent, it would be very desirable. Surely the father’s ambition is to return to work full-time?”
The father said that his wife did not look after his daughter but her grandmother did so. He was concerned about the grandmother’s boyfriend, who he claimed was an alcoholic. He said his daughter said she did not have her own room, and had told him of fighting incidents in the house. He was also concerned that the mother now had a boyfriend she was bringing back to the house.
The judge asked him: “Are you giving too much of yourself to the child rather than devoting yourself to getting back to work?” The father responded: “How can you ever be too much devoted to your own child?”
The mother said she thought it was in the daughter’s best interests to have a single base. “A week is a long time for a child. She comes home upset. Loads of times she says she doesn’t want to go.” She acknowledged she was now in a new relationship, but said that this did not affect her parenting. She also denied her mother’s partner was an alcoholic.
Judge Murphy ruled that there be joint guardianship and joint custody and that the girl stay in Ireland unless both parents agreed otherwise in writing. He said the existing custody arrangements should stay in place, with the parent she is not staying with in a given week seeing her each Wednesday from the time she finished school until 7pm.
'It is terribly tragic that they cannot behave civilly'
THIS CASE was an appeal by a mother against a custody order granted by the District Court to her ex-partner for their two
sons. The couple, who were never married, had three teenagers, two boys and a girl who were living with their mother.
The father had weekend access to the three but had obtained a District Court order to have custody of the two
boys, claiming this was what they wanted, while the custody of the girl remained with the mother.
The mother, a non-Irish national, appealed this decision. The father acknowledged in court he did not speak to the mother or have anything to do with her.
Judge McCartan heard evidence from both parents, and also saw the boys in his chambers at lunchtime.
Following this, he said: “This is an appeal against a ruling of the District Court. I have listened to the parents. It is terribly tragic that they cannot find the means to behave civilly towards each other.
“Do you ever stop to think of the example you are giving? You are the models for your children. You cannot find it in yourselves even to refer to each other by first names. The pair of you should be ashamed of yourselves.
“What example are your children going to follow when they go out into the world? Into relationships? How can they talk to their friends about their mum and dad?
“It must be agony for them when they see their friends’ parents getting on. Relations break down. People move on in their lives. After four years there should be a capacity to put the children in the frame.
“The mother asked for experts’ opinions. They don’t need them. Your children are beautiful, intelligent, healthy children. What’s going on down deep is that they’re hurt and confused.
“For the past four years they have been living in and have a regular cycle in their lives. has a view that things would be better for the boys if this changed.
“I have talked to the children. I would not be disposed to move them until at least the Junior Cert is over. I will leave it as it is, with regular visits to at weekends.
“What the children said to me in my room I said would remain confidential. But I am satisfied that the decision I am making will not upset any of them unduly. In a few years I will revisit the issue. Where there is a doubt it is better to leave things as they are.
“They are beautiful children. They are not unhappy. I want to make it clear that has as much right to be involved in their lives as has.”
This was one of the few cases where the judge sought the views of the children in his chambers, and a number of judges indicated their willingness to do so when the children were of a sufficiently mature age.
'There are to be no male visitors at night'
AN UNMARRIED couple had two daughters, aged eight and four. On their separation they had initially agreed that the children share their time equally with both parents, staying half of every week with each.
Then the mother moved with the children to a town about an hour from Cork, changing their school. The father challenged this unsuccessfully in the District Court, which ruled that they stay in this town and giving him access of two weekends a month. The father was now appealing the District Court ruling to the Circuit Court, seeking the return of the children to Cork.
He described being the primary carer of the children when they were young, and of caring for them half the time since the separation from the mother. He said he took them swimming, entertained their friends in his home, where he had a trampoline for them, and that they were very happy in Cork.
Their mother was still working in Cork and was away for about 12 hours a day, while they were looked after by an au pair. If the children moved back to Cork to live with him their mother could see them after school, he said, and take them to this other town every second weekend and bring them back on Monday morning.
The mother said she had decided to move to the other town, where several members of her family lived, when her sister became ill. The children had their extended family there. She said she was looking for a job locally and that as a single mother she needed the support of her extended family.
Judge Kenny asked her if she was in a relationship, and she said she was not, and that the matter did not arise.
After a 40-minute adjournment the judge said: “The children will remain with their mother in . I accept both parents have a very good relationship with the children. I have given very serious consideration to placing the children with their father. But the mother’s willingness to work locally has tipped the balance, hence the urgency of her getting a job locally.
“The father will have weekend access every second weekend in from 10am on Saturday to 6pm on Sunday. The mother will vacate the house on the weekends the father is there. There are to be no male visitors at night in the house.”
He also said that the children could spend long weekends with the father in Cork, and that both parents should be at all school and other significant events.
He said he would review the matter two months later. Prior to the case coming before him again, the parties negotiated a settlement which varied the orders made.