Legislating for Shared Parenting: Exploring Some Underlying Assumptions

Abstract

In 2006, the Australian parliament introduced new family law legislation about substantively shared overnight parenting arrangements between divorced couples. Other countries and state legislatures are currently debating the merits of similar legislation. A largely unquestionable premise underpins this reform, namely that the majority of children from separated families demonstrably benefit from the ongoing, warm and available involvement of both parents, in a climate of well‐managed interparental conflict. The Australian legislation moves beyond encouragement of shared parenting in divorce cases with adequately functioning parents; it extends into grey areas which, to date, remain poorly serviced by credible research, including its application to children of all ages and to parents experiencing significant levels of ongoing conflict. Drawing on data from a longitudinal high‐conflict divorce sample, this article challenges three assumptions that underpin a legislative preference for shared parenting, that shared parenting is viable and sustainable for divorced parents in conflict, that shared care enables improved cooperation between parents, and that as a result children will be less affected by their parents' conflict. The article further explores the influence of the mediation process on the choice and durability of shared parenting arrangements.

Characteristics of joint physical custody families in Flanders

“…The concept of "equal time" was introduced by the legislature to strive for gender neutrality, but it may have created the expectation that joint physical custody is a "parental right". The attention has been shifted away from enabling continuity in the parent-child relationship toward an equal division of children"s time between both parents (Mcintosh 2009). A second reason for the decreased association between parental conflict and custody type may be the higher incidence of court-imposed joint physical custody situations due to legal presumptions.…”

“…This may have far-reaching consequences for the children involved, given the evidence demonstrating that joint physical custody is not beneficial when parental conflict is high (Amato and Rezac 1994;Fehlberg et al 2011;Frankel 1985;Johnston 1995). McIntosh (2009) also warns that the qualities needed to make shared parenting arrangements work (e.g., good communication skills, a cooperative attitude) are typically not the characteristics of parents that litigate in court. In Sweden the legal preference for joint physical custody was cut back in 2006 by amending the law to indicate that this custody arrangement can only work when both parents are able to cooperate (Singer 2008).…”

“…Numerous studies, mostly conducted in the U.S. or Canada, have shown that joint physical custody parents were more highly educated and had higher incomes than sole mother or sole father custody families (Cancian and Meyer 1998;Fox and Kelly 1995;Shiller 1986;Mcintosh 2009). Higher educated parents were more likely to be aware of this custody arrangement (Donnelly and Finkelhor 1993) and were better able to pay the costs of this relatively expensive custody arrangement (Juby et al 2005;Kitterød and Lyngstad 2012;Melli, Brown, and Cancian 1997;Pearson and Thoennes 1990).…”

Autonomy for Mothers? Relational Theory and Parenting Apart

“…Similarly, from a psychological perspective, Jennifer McIntosh has recently suggested, based on research suggesting that it is wrong-headed to encourage all parents to ''give shared parenting a try'', that we need to bring finer distinctions to our inquiries than have typically been made about shared parenting (McIntosh 2009, p. 397, quoting Smyth 2009. Her relational approach would ask questions such as ' '[w]hat are the influences of various shared care climates and patterns on each parents' [sic] emotional availability to their children?''…”

Cost-Benefit Analysis of Family Service Delivery: Disease, Prevention, and Treatment

“…It is a generally acknowledged benefit to children to have parenting arrangements which preserve meaningful relationships with both of their parents. 52 However, inter-parental conflict is a generally acknowledged cost or detriment to children, especially if the children are aware of or observe that conflict. 53 The effort to preserve relationships with both parents by ordering joint custody may often increase the level of conflict.…”