Academic journal article Journal of Family Studies

Intervening in Post-Separation Parenting Disputes: Reflections on Past, Present and Future Principles and Processes

Academic journal article Journal of Family Studies

Intervening in Post-Separation Parenting Disputes: Reflections on Past, Present and Future Principles and Processes

Article excerpt

Prior to the last quarter of the 20th century, the rules governing decisions about post-separation parenting disputes, though often formally couched in terms of the interests of the children, were brutally simple. Until roughly the turn of the 19th century, the law endorsed the principle of paternal 'ownership' of children, a concept derived from Roman law. This period, for example, saw cases in English divorce courts in which the law required judges to remove breast-feeding infants from the care of their mothers. Some judges could not refrain from commenting on the personal anguish this requirement caused them.

The late 19th century saw a growing emphasis on domesticity, thought by many scholars to have been a product of increased production resulting from the Industrial Revolution. With the prospect of surplus capacity providing opportunities to think beyond day-to-day survival, Rousseaus concept of the nurturing and self sacrificing mother found increasing favour. Over a span of no more than 40 years, awarding children to mothers became divorce courts' default position when decisions about parenting were required. In adopting this position, courts also generally reduced the role of separated and divorced fathers to that of visitors to their children. To this day, the term 'visitation is still used in many Western jurisdictions to denote the status of the 'other' parent.

For many years, a further decision-making principle was tied to the fact that most applications for divorce required the establishment of fault. Having established 'fault' on the part of a former partner, a parent might be awarded custody of the children on the grounds of his or her 'innocence.' Although courts' use of this morally based decision-making principle probably reflected the general mores of the day, it also echoed the ecclesiastical origins of family law. Thus sexual misdemeanours by women were especially likely to attract opprobrium, there being ample evidence that in contested cases in which a mother's adulterous relationship was the alleged cause of the separation, courts were especially likely to override the default option of granting care of the children to the mother.

The late 20th century saw two major changes to divorce laws in Australia and many other countries that were to impact significantly on how disputes over children were conceptualised. The first was endorsement of what was popularly known as 'no fault' divorce. This meant that if divorces were granted only on the grounds of irretrievable breakdown of a relationship, the nexus between reasons for divorce and future parenting arrangements was severed. Of probably equal if less immediate significance were declarations in Australia and elsewhere that from a legal perspective, gender could no longer be held to be a primary consideration in the determination of post-separation parenting disputes. When these two new principles were considered together, post-separation decision-making over children, as Mnookin (1975) famously put it, entered into an era of legal indeterminacy.

Over at least the next 20 years in Australia, Mnookin's observations appear to have had only a minor impact on family law processes. The reasons for this are complex. On the question of gender for example, the social realities of family life during this period continued to be largely those in which mothers did most of the hands-on parenting. For many judges, it would no doubt have appeared inconsistent with these realities to award 'custody' to a father except in somewhat extreme circumstances. In addition, in the face of mothers clearly continuing to act as parental gatekeepers during this time, research into the capacity of fathers to nurture their children was slow to gather pace. For example almost all the attachment research that took place prior to and during this period had either ignored the role of fathers or had at best constructed their role as secondary helpers and supports to the mother. …

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