When marriage ends in divorce, what’s in the child’s best interests?

When a marriage ends in separation and children are involved, the parents, Family Court Judges and professionals, must decide on separated parenting arrangements (previously known as ‘custody’), with the child’s best interests in mind. This is an issue wrestled with all over the world, as legislators must decide on the ‘standard’ amount of custody the non-resident parent should have, and when arrangements should vary from the norm.

What represents the child’s best interests? Is it best represented by:

A. Current and future happiness
B. Spiritual and religious development with a preference for stability over creativity
C. Future capacity to become a productive member of society
D. A preference for  emotional depth over discipline or self-sacrifice

Many people would argue it is all of the above, and more. Dr Robert Emery (et al.) pose the difficult questions which inform the ultimate problem. In their paper, A Critical Assessment of Child Custody Evaluations ( Emery, Otto & O’Donohue 2005) they propose that firstly, there should be increased efforts for separated parents to reach their own solutions with support. This generally infers mediation. They also feel there should be “Clearer and determinative” legislation and constricted parameters for Family Court Reports (FCR) or evaluations. Finally, they recommend that FCRs rely only on the law and scientifically based assessments, rather than on non-evidenced personal thoughts and preferences.

I suggest that most western societies are moving toward mediation or other methods of supported solutions, some faster, some slower. The province of Alberta in Canada for example is currently undergoing a process of creating a more integrated approach to family law driven by the judiciary and government. The state of Victoria, Australia, is rolling out a model that has great possibilities in Family Law but is directed more toward welfare services.

The jury is out on clearer and determinative rules in legislation and constricted parameters. The authors suggest that the approximation rule, where post separation child residence resembles pre separation care involvement, is a reasonable substitute. The authors identify some of the pitfalls such an approach would involve. I would argue that while turning a possible convention (this is how we do it here) into a code (or legislative requirement) promotes an environment of clarity it may also amplify injustice and promote conflict.

Relying on scientifically based assessments will always be contentious, as in effect, society is legislating on people’s emotions. Further, FCRs will always contain an element of subjectivity.  As mediators we may be diligent in working from as neutral a position as possible. However, holding the dominant convention is possibly not neutrality but reinforcing “this is how we do it here”.

It can be so much more powerful to do something because we believe in it, and that includes the ability to challenge and reflect on that belief, rather than to do something because it is the right thing to do under the legislation.

Ian Connop, Clinical Supervisor and POP Coordinator, Relationships Australia Queensland

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Over the next eight weeks, we will invite two guest bloggers from our talented pool of Relationships Australia counsellors and mediators, to explore the topics of children and divorce, including child custody/co-parenting, mediation, and anger. In July, we are honoured to be hosting Robert Emery, Ph.D., a Professor of Psychology and Director of the Center for Children, Families, and the Law at the University of Virginia. Dr Emery will be touring Queensland with Relationships Australia, to give a series of lectures, including the 15/16 July 2014 in Brisbane, entitled “The Truth About Children and Divorce.”