Arthur Baker, Lecturer in social policy , Barnsley College, and
Peter Townsend, Senior Lecturer in Law, University of Teeside.
Draft of article which was published in: Child and Family Law Quarterly, Vol 8, No 3, 1996, p 217
Another factor has been the emergence in many countries of a father's movement. In the USA organisations like The Joint Custody Association and The Children's Rights Council have been influential in shaping attitudes on custody issues in a number of State legislatures. In the UK, the rise of several fathers' pressure groups, although lacking the coherence of much of the American movement, demonstrates the commitment that many divorced and separated fathers feel towards shared residence (5). This increase in political activity amongst divorced and separated fathers is matched by an increasing awareness of and interest in fatherhood generally. This interest has been both academic and popular (6). There has also been the first stirrings of a men's movement (7) and writers like Robert Bly have written on the nature of masculinity and fatherhood and in particular on the subject of boys relationships with their fathers (8).
The real level of support that many fathers feel for shared residence may be officially underestimated. It seems to be the case that fathers may in general seek a closer involvement with their children after divorce or separation than the sole residence and reasonable contact model can provide. In the Stanford Custody Study of 1100 divorcing Californian couples carried out in the mid-1980s, Maccoby and Mnookin (9) compared parents' initial preferences for custody awards shortly after the divorce petition with what parents formally requested in the court process, as well as with the actual custody awards made by the court. It was found that 82 per cent of mothers expressed an initial preference for sole custody, most of them formally requested sole custody and a majority were awarded sole custody by the court. Fathers, however, initially expressed preferences for a wider variety of custody arrangements - one-third wanted sole paternal physical custody, one-third wanted maternal custody and one third wanted joint physical custody. An important finding however was that about one-third of all the fathers did not formally request as much physical custody in the divorce petition as they really wanted. Fathers who had expressed a desire for sole paternal custody or shared physical custody did not request it formally. There is an argument here for saying that the real extent of support amongst fathers for shared residence is suppressed. On Maccoby and Mnookin's evidence, about one-third of divorcing fathers prior to filing divorce papers express a preference for joint physical custody or shared residence with another one-third expressing a desire for sole physical custody.
The limitations of the reasonable contact model of post-separation parenting have also encouraged support amongst fathers for shared residence. The conventional view of the sole residence and reasonable contact model is that where there is a resident parent the visiting parent will spend one or two days a week with the children. The reality is that most children of divorce rarely see their fathers. The rate of paternal disengagement is well documented. It is estimated that over one half of non-custodial divorced fathers in the USA gradually lose all contact with their children. (10) This figure has been repeated in British studies (11). Loewen (12) has suggested that the explanation for the fall off in visitation does not lie in background variables like economic factors, parental involvement prior to the break-up or the age of the child, but in the structure of visitation itself. Under this analysis the marginalisation and disengagement of fathers is an inevitable consequence of the sole residence and reasonable contact model. Kruk (13) has argued a similar position in his analysis of 'disengaged' fathers and has suggested that fathers who had a close pre-separation relationship with their children are more likely to become disengaged because of the artificiality and limitations of visitation parenting.
The use of shared residence in other jurisdictions, particularly in the USA has also led to an increase in interest. Whilst the legal trend in the USA over the last 10 years has been to favour joint legal custody over shared residence / joint physical custody, where enabling legislation has been passed there has been an increase in court orders for joint physical custody (14). Using the criteria that joint physical custody is where the child lives with one parent from 30 per cent to 50 per cent of the time, it seems that between 17 and 30 per cent of divorced families share physical custody of their children in California, a State which has permitted shared residence / joint physical custody (15). In a two-county sample of 1129 families in California, joint physical custody / shared residence was the outcome in one-fifth of divorcing families (16).
The 1989 Children Act gave some further hope to advocates of shared residence. Under Section 11(4) it became possible for courts to make joint residence orders. The Act states:
This point is reinforced in regulations and guidance, which state that:
The guidance goes on to say that:
The effect of this statutory provision is that it enables courts to make orders which would endorse the idea of shared parenting. The position previously had been established by Riley v Riley, (19) where the Court of Appeal had come out unequivocally against the idea of shared residence. In that case the Court of Appeal had been particularly concerned with the question of a child living alternate weeks with each of her parents. This arrangement, for joint physical care and control, had been ordered by a lower court and had apparently worked well for some five years. The Court of Appeal reasoned that a child needed one settled home and that the original order had been wrong. Section 11(4) of the Children Act 1989 effectively overruled this judgment.
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