MOST CHILDREN live primarily with their mother following separation or divorce, new research has found.
A study of the family courts reveals that joint custody and shared parenting arrangements were the most likely outcomes and that the majority of parents were able to agree on the arrangement.
The study was carried out for the Minister of State for Children by Dr Evelyn Mahon, senior lecturer in social work and social policy in Trinity College Dublin, and Elena Moore, a research graduate.
They attended 134 cases in three Circuit Courts over 15 weeks in 2007, noting issues relating to separation, divorce, maintenance, custody and access.
Eighty-seven of the cases were analysed, and joint custody was awarded in 70 of them. Sole custody arose in 11 cases, normally where one parent posed a risk to the children, or where there had been paternal desertion of the family. In the remaining cases, the children were older teenagers and the courts were reluctant to make custody orders.
Joint custody was understood as joint legal custody, and in 63 of the 70 cases the children lived mainly with their mother. Only in six cases did they live mainly with their father. The dominance of the mother stemmed from her being the primary carer pre-separation, and the spouse most likely to stay in the family home, according to the study. However, it also found that in eight cases the parents decided to share the care on an almost 50:50 basis. In a further four cases, one parent had the children at weekends. Older children chose where to spend their time.
The most common description of access was “liberal” or “flexible”. In a minority of cases there was ongoing controversy about access because of issues like the relocation of the primary carer or claims of unfitness on the part of one parent.
The study found that in such cases the dominant judgment of the court was to promote access initially on a limited basis, with proposals to increase access later. The courts upheld and promoted the right of the child to have contact with both parents following separation and divorce.
The authors found mothers were more likely to stay in the family home. This was the outcome in 33 of the 63 cases where the family home was an issue, while the father stayed in it in seven of the cases. About half these mothers remained in the family home as part of a compensatory package (in lieu of maintenance). In the other cases the mother bought out the father’s equity.
The payment of maintenance by one spouse to another was very rare and occurred in only two of the 87 cases analysed. Child maintenance was paid in 54 of the cases, with the amount varying widely.
The study found many post-separation parents in full-time caring roles were on low incomes unless they were employed or had business income. Parents who were employed or in financially egalitarian relationships before separation were, along with their children, less likely to be exposed to poverty post-separation or divorce. The lack of spousal maintenance suggests that mothers were expected to earn their own keep by taking up employment, the study says.
The full report is on the website of the Minister of State for Children.
CASE STUDY: FATHER BEING DENIED ACCESS
IN ONE case a separated mother was denying access to the father because she claimed it was not in the children's best interests.
However, a specialist report claimed that the children were being coached into a negative stance on their relationship with their father.
The judge interviewed the children in his chambers and concluded they did not want access.
The boys felt that their present counsellor who prepared the report was not impartial and the judge appointed another counsellor to prepare another report for the court.
The judge directed that the children be left alone for two months.
He also ordered the mother to co-operate with the access agreement that had been made and not to be negative in relation to the children's relationship with their father.
The couple will have to return to the court where the judge will adjudicate on what is in the children's best interests.
CASE STUDY: DID NOT AVAIL OF ACCESS
IN ONE case, the father left when the mother had served a barring order on him for violent conduct.
She was granted sole custody of the three children, now aged 21, 19 and 15.
At the time of the separation, the father had been granted access to the children but he had never availed of it and there had been no contact between him and the children since he left.
Having been separated for over 14 years, the wife applied for a divorce and a sole custody order for the 15-year-old only.
In the two years preceding the court case the two older children had gotten in contact with the father, though the youngest had not. The mother was granted a divorce and the sole custody order for the youngest child remained in place.
The report's author commented that had the father availed of access he may have been able to contest the sole custody order.