Shared Parenting Information Group (SPIG) UK
- promoting responsible shared parenting after separation and divorce -
The power of terminology in the establishment of child care arrangements post separation or divorce
- a pre research position paper by Mark Dando, Senior Lecturer in Mental Health University of the West of England
This paper explores the effects of child care legal terminology on the behaviour of society, the legal system, adjacent services and most importantly in respect to parents and children. The hypothesis is that the present child care labels unconsciously continue to establish and perpetuate the preferred custody arrangement preventing the implementation of shared child care practices.(1). It is therefore recommended that these labels are reviewed and the paper suggest two options: the adoption of a joint physical custody with single legal custody preference or the discardment of labels and their underlying doctrine. (2).
The assumption underpinning this paper is that child care settlements take place in the light of what the parties expect to happen, (Cochran 1991). If we therefore review (simplistically) the social policy developments which have occurred in relation to child care arrangements post separation or divorce, it is evident that the legal terminology of the period has largely determined the majority of child care arrangements. This is evident in the post war period and into the 1980's when the child care legal terminology in the UK was phrased in terms of "Custody, Care and Control'', flowing from and supporting societal expectations. It was therefore assumed by society, the legal system, parents and junior(s) that any child(ren) would live with a primary carer who would have: sole custody, and daily child care and control. The wording of the legal terminology therefore established what the parties expected to happen which was forcibly supported by societal expectations and the legal and adjacent services. A review of the statistics for the period subsequently denote that these unconscious stalwart assumptions assisted in the creation of the ''single parent'' child care cultural ''norm'' with repetitive one parent disengagement, (Smart 1997, Simpson et al 1995).
Focusing upon contemporary UK society it is important to ask if the implementation of the Children Act 1989 (Dept Of Health 1989), has assisted the transformation away from these consequential powerful unconscious assumptions and created a framework in which a gamut of child care arrangements could now proliferate? Here there is obviously room for debate since the philosophy of the Act was tasked with the lowering of stereotypical assumptions, the establishment of flexible child care options and an the premise that the historic child care norms post separation or divorce created as many problems as they were trying to solve. Although there is a lacuna of research evidence exploring this issue the author suggests that the participants in the divorce and separation phenomena still quickly learn what the expected outcomes are likely to be as advocated by the legal support services, court rulings and ''normal/societal'' child care expectations and arrangements. These acting as a self fulfilling prophecy encourage parents down two major routes, with the majority following the normative de facto sole residency and contact or parental disengagement model, (Kruk 1993). (3). When reflecting upon the causative factors of this phenomena the power of the child care terminology and the unconscious assumptions which support these legal constructs are clearly visible. The Children Act 1989 term of ''Residence'' presents the parents, child(ren) and the legal and aligned services with the societal expectation that children should have one primary parent and home. There is similarly an automatic assumption that the ''Contact'' parent has a lower societal and legal parental role and subsequently it is socially acceptable for that parent to disengage, (in contrast to the residential parent). The terminology of the Act thus helps to establish the behaviour of the parents, child(ren), the legal support services, court rulings and unconsciously sets the parameters for the mediation services which need to practice within the living legal and societal climate.
At this juncture it is useful to review the concept of ''Parental Responsibility'' which the Children Act 1989 normally infers upon each of the parents. Although this concept is to be commended in establishing the assumption that both parents are vital in relation to continued child care the author proports that it is over ridden by the unconscious and powerful legal terminology as denoted in the terms of Residence and Contact. An example supporting this assumption includes the frequent difficulty that the ''contact'' parent has in receiving their child(rens) educational or medical reports vis a vis these services only contacting and accepting the parental authority of the ''residence'' parent, even though both are assumed to have Parental Responsibility. The Children Act 1989 terminology thus perpetuates the historic status quo of the preferred custody arrangement as parents utilising the Act quickly identify who is the primary and thus resident parent with the other being labelled the contact parent. These are formulated at an unconscious level with limited recognition of any parenting skills, child(ren) needs, past parenting patterns or the unique dynamics of the reconstructing family(s) arrangements. In conclusion the terminology surrounding child care arrangements post separation or divorce may militate against the development of shared or other dynamic child care practices because the parents and child(ren) behave as per the expectations of the Act and significant services, denoting a service led rather than needs led system.
The unconscious power of terminology relating to the post separation and divorce child care phenomena therefore needs to be carefully considered especially for parents who are unable to agree child arrangements and when one parent can establish that he(s) is the child(ren) primary caretaker. It is therefore proposed that one solution could be the adoption of joint physical custody with a single custody preference, (Cochran 1991). This denotes that both parents will automatically assume joint physical custody, prescribing that the child(ren) will spend significant amounts of time with the primary parent but spend regular periods with the other parent. This is combined with legal custody formalising that the primary parent is tasked with making the major decisions concerning the child(ren) life as long as they do not interfere with the joint physical custody parent/child(ren) relationship. (4). Although not a panacea in assisting this group of frequently struggling parents the model does present the participants with a range of advantages which are worth consideration.
These include:
(a) Litigation is reduced as the parents acknowledge a primary residence however there is formal recognition that both parents are essential to the needs of the child. Pearson and Thoennes (1991) additionally suggest that such an arrangement supports the primary parent who does not feel threatened (especially in situations of gender emotive control) and that the other parent does not need to seek affirmation of their role as it is legally and socially affirmed, (Arditti 1992).
(b) Due to the concept of joint physical custody the child(ren) will become socialised into a climate of normalised parent/child interactions and expectations. In this climate it would be assumed that disengagement by any of the parties would be deemed as unusual outside of the dynamic relationships which evolve within the normal life cycle of the family. Coherently both parents would have sufficient time to maintain a meaningful parent/child relationship that is difficult to achieve under many contact conditions.
(c) The terminology relating to ''joint physical custody'' clearly advocates to the parents, child(ren), legal and other significant services as well as to wider society that both parents have empowered continuing care of the child(ren). This pronounces that the parents roles include day to day child care and coherently all services (etc) will need to keep both parents involved in all aspects of their child(ren) upbringing.
(d) The ego boosting unconscious assumption of the terminology may additionally facilitate both parents levels of self esteem and role identity and assist in their psychological readjustment to a major life event, (Steinman 1981). Thus may reduce the depression and grief reaction frequently reported by the contact parent which can precurse their failure to undertake child contact due to their social role depowerment, (possibly significant for men).
(e) Joint physical custody will actively show to the child(ren) that both parents love them and that they wish to remain involved in their life, assisting the child(ren) adjustment to the separation and enhancing their coping mental defence mechanisms and ''protective factors'', (Cockett and Trip 1994, Amato 1993).
Throughout this paper there has been the assumption that the child care arrangements which develop post separation and divorce are heavily influenced by parental expectation. Subsequently the adoption of the preference for a joint physical custody with single legal custody model could become a major determinant in the behaviour of the parents and significant agencies. This is especially important in the early stages of the divorce when uncertainty and high emotional volatility can quickly establish rigid constraints on the child care possibilities, (Cook 1992). These can burden a single parent with the majority of the child(ren) care whilst psychologically damaging juniors who frequently yearn for their absent parent. The terminology of this model could therefore offer these parents the premise that they should continue their long term parental involvement and that they have different but equally important parental social roles. There are however a number of difficulties when developing and implementing new legal terminology into a climate of historical rigid and value laden social policy (Weyland 1995), including the effects of translegalisation and parental internalised oppression. (5). To surmount these negative factors requires a paradigm shift in the post separation and divorce child care culture, i.e. the discardment of labelling terminology and there assumptions.
The discardment of child care terminology establishes a climate in which the parents and significant others will be uncertain as to the outcome of any legal proceedings and therefore minimalise the parents behaviour to adopt the recognised legal and social norms. This will encourage the development of child care arrangements which are unique to the family, possibly related to the preseparation child care pattern or organistically developed in the family transformation period. The absence of child care terminology and assumptions would coherently establish a needs led child care plan which reflects the unique life style of each of the parents and their child(ren) needs, ages and wishes. (6). These dynamic child care plans could be developed with the assistance of the parents legal services or preferably utilising the independent and neutral mediation process during the transformation period (Fisher 1997), before the divorce is legally sanctioned. Saposnek (1991) suggests that child care plans should address the following themes which could be evaluated and modified as the life cycle of the reconstructed families evolve. These themes include:
(a) Communication between the parents and parents to children.
(b) Organisation of the parental responsibilities to decide which parent(s) take accountability for the various child care needs and decisions.
(c) Scheduling so that the children clearly understand who is caring for them at a particular period.
(d) Substitute care providers to ensure that the parents agree who is acceptable and how frequently these personnel could be used.
(e) Discipline and the enforcement of child care rules and guidance to ensure a level of consistency between the parents and homes if appropriate.
(f) Contingencies concerning unusual events as defined by the needs of the families.
The adoption of this model to develop child care arrangement implies a radical transfer of power and authority from the legal system to the parents who are undertaking a unique family transformation, (Longman 1994). Although this model requires refinement it is suggested that without such a radical shift away from the value laden UK child care terminology the adoption of flexible and dynamic child care constructs will continue to constrained.
In conclusion this paper highlights to the reader the unconscious effect of child care terminology and that these terms directly effect the behaviour of the parents, child(ren), legal and significant support services as well as the expectations of society. The rationales underpinning this paper are not viewed as being definitive but to establish research hypotheses to gain empirical understanding of the family transformation process. These could eventually lead to the: Development of a set of research based practice principles and models to augment the divorce and separation family agencies to assist parents and children to establish and maintain shared child care arrangements.
1. The concept of shared care practices are not seen by the author in terms of one homogenous status as presented by the UK labels, namely residence, shared residence or contact. Although requiring empirical research it is hypothesised that UK child care arrangements post separation or divorce are not clearly boundaried when being implemented. Arrangements could therefore denote: communicative, parallel, dysfunctional, participative, joint or ''individualistic''.
2. Here the author is not suggesting that there are only two options which are available to adults and significant others to address the effects of child care terminology and labels but for brevity within this paper only two possibilities are explored.
3. Parents who are able to agree to child care options outside of the legal framework are not subject to the extremes of labelling terminology and the automatic unconscious assumptions which they infer. Although requiring empirical research the frequency of these or other arrangements are however assumed to be in the minority.
4. Proscription from the joint physical custody and single legal custody preference would remain an option for parent(s) via court application.
5. Translegalisation is a term utilised to denote the transfer of status quo historic child care practices and assumptions to over ride new legal developments, thus diluting there impact until the terms have a corrupted meaning. Parental internalised oppression is a term utilised to describe the self limiting effects quickly learnt by the non residential parent who perceives their role to be minimal thus reducing their ability to be assertive in upholding their rights.
6. Parents and the child(ren) would however be able to seek the support of the legal and child care systems as required and appropriate to their security.
References
Amato P (1993) Children's Adjustment To Divorce: Theories, Hypotheses, And Empirical Support Journal Of Marriage And The Family February 55 :2338
Arditti J (1992) Differences Between Fathers With Joint Custody And Non Custody Fathers American Journal Of Orthopsychiatry April 62 (2) :186195
Cochran R (1991) Reconciling The Primary Caretaker Preference, The Joint Custody Preference, And the Case By Case Rule in Folberg J (1991) 2nd Ed Joint Custody And Shared Parenting New York The Guildford Press
Cockett M and Trip J (1994) The Exeter Family Study Breakdown And Its Impact On Children Exeter University Of Exeter Press
Cook A (1992) Joint Custody Survives And Thrives Joint Custodian February : xiDepartment Of Health (1989) An Introduction To The Children Act 1989 HMSO
Fisher T (1997) National Family Mediation. Guide To Separation And Divorce The Complete Handbook For Managing A Fair And Amicable Divorce London Vermilion
Kruke E (1993) Divorce and Disengagement Patterns Of Fatherhood Within And Beyond Marriage Nova Scotia Fernwood Publishing
Longman Editorial (1994) The Divorce Green Paper : What's In It For Children Practitioners Child Law Bulletin March 7 (3)
Pearson J Thoennes N (1991) Child Custody And Child Support After Divorce in Folberg J (1991 2nd Ed Joint Custody And Shared Parenting New York The Guildford Press
Saposnek D (1991) In Folberg J 2nd Ed Joint Custody And Shared Parenting New York The Guildford Press
Simpson B McCarthy P and Walker J (1995) Being There: Fathers After Divorce Newcastle Upon Tyne University Of Newcastle Upon Tyne Publication
Smart C (1997) The Ties Still Stand The Times Higher September 5th :15
Steinman S (1981) Joint Custody American Journal Of Orthopsychiatry July 51 (3) :402414
Weyland I (1989) Judicial Attitudes To Contact And Shared Residence Since The Children Act 1989 Journal Of Social Welfare And Family Law 17 (4) :445459
Last updated - 4 October 1997
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