Abstract

1) Social Context

People’s behaviour can be greatly influenced by their social environment. The social context in which people operate is therefore important, although not always recognised. One interesting illustration is the case of the “Order of the White Feather” in First World War Britain. This involved women pressuring boys and men to enlist by giving white feathers, symbolizing cowardice.

To quote[1]:

"One young woman remembers her father, Robert Smith, being given a feather on his way home from work: "That night he came home and cried his heart out. My father was no coward, but had been reluctant to leave his family. He was thirty-four and my mother, who had two young children, had been suffering from a serious illness. Soon after this incident my father joined the army.""

or:

"(4) James Lovegrove was only sixteen when he joined the army on the outbreak of the First World War.

On my way to work one morning a group of women surrounded me. They started shouting and yelling at me, calling me all sorts of names for not being a soldier! Do you know what they did? They struck a white feather in my coat, meaning I was a coward. Oh, I did feel dreadful, so ashamed.

I went to the recruiting office. The sergeant there couldn't stop laughing at me, saying things like "Looking for your father, sonny?", and "Come back next year when the war's over!" Well, I must have looked so crestfallen that he said "Let's check your measurements again". You see, I was five foot six inches and only about eight and a half stone. This time he made me out to be about six feet tall and twelve stone, at least, that is what he wrote down. All lies of course - but I was in!""

and:

"Although he was a serving soldier, the writer, Compton Mackenzie, complained about the activities of the Order of the White Feather. He argued that these "idiotic young women were using white feathers to get rid of boyfriends of whom they were tired". The pacifist, Fenner Brockway, claimed that he received so many white feathers he had enough to make a fan."

It should not be assumed that all women agreed with this approach, but it did have some noteworthy supporters. Christabel Pankhurst wrote of her suffragette mother, Emily: "She called for wartime military conscription for men, believing that this was democratic and equitable".[2] The term “equity” is often loosely applied.

This example is of interest because it says something about male and female roles, the influence that women can exert on men, and even women’s caring for others and attitudes to violence. It is relevant because, rather than taking a short-term case-by-case perspective, I want to consider the impact of the Family Court in a wider context.

The phenomenon of engineered gender roles can be observed also with maternal “gatekeeping”.

2) Gatekeeping

It appears that this may not be a new phenomenon, as Hardyment (1995, p.122) observes. She refers to the author of Child Training, published in 1914:

Mrs Arthur Acland felt she had to plead against 'a tendency towards putting the father outside the life of the child, a more or less clumsy interloper whose opinion and advice is to be taken critically, and with more or less conscious derision'.

Doherty et al. (1997) acknowledge that “substantial barriers stand in the way of active, involved fathering” (p.286).  Among these barriers, they include gatekeeping. They suggest that this may be linked to the relationship between the parents, especially if they are separated, but “even within satisfactory marital relationships, a father’s involvement with his children, especially young children, is often contingent on the mother’s attitudes toward, expectations of, and support for the father” (pp.286-7). The authors cite studies indicating that, “many mothers are ambivalent about the fathers’ active involvement with their children” (p.287). By way of explanation, they say that, “active paternal involvement would threaten some women’s identity and sense of control over this central domain of their lives” (p.287).

Not surprisingly perhaps, conflict or stress between parents can therefore be a major inhibitor of effective father involvement. As Doherty et al. state, “Research demonstrates the particular vulnerability of fathering to contextual and institutional practices” (p.287). The Family Court can be a major factor in this for many fathers, and the resulting signals can impact far more widely. Attitudes can be both inappropriate and significant, so it is important that people are well informed.

A strong, current message that, if anything, pushes gatekeeping to extremes is that conveyed by the “primary caregiver” concept. This is used to support the present situation where sole custody is commonly awarded to the mother when the parents live apart. In other words, primary caregiving leads to sole-caregiving:

Laila Harre said in her speech at the first reading of the Shared Parenting Bill[3]:

“I have to say that if there is a desire to have the primary care-giving tasks, which is what this bill is about, equally distributed after a separation, then the work to share parenting must begin a long time before a separation...

   As I have said earlier, if we want to share parenting when it all busts up, we have to make a lot more effort to share parenting much earlier in the relationship. Then, in fact, the courts are far more likely to see a shared parenting role as being in the best interests

of our children.”

Julian made the point in an even more extreme way, requiring fathers to have provided not only “primary care”, but “fulltime care”:

“…there are good reasons why custody cases at present are more likely to favour the women. The best interests of the child are the paramount consideration. Most of the women awarded custody will have been the primary caregivers and they will, therefore, be seen by the court as best able to care for the children, especially when they are very young. It is possible that many current fathers would be able to provide the same standards of care as the mothers of their children. However, since few of them have practically demonstrated their nurturing skills through providing fulltime care for their children, the judge will be bound to make a decision based on evidence rather than speculation.” (Julian, 1999, p.32)

Nash pushes this even further, suggesting that it is acceptable for fathers to perform “mundane” tasks, but suggesting that pressure for more than that is a sinister attempt to achieve patriarchal power and control.[4]

Tapp and Taylor (2001, p.11) assert that, as mothers do more of the day-to-day care during marriage, “decreeing that the ending of the marriage should not affect the responsibility of parents who should continue as before, then the decree would not be for full shared care but in the main for primary care by the mother”. Given that “primary care” is commonly interpreted as “sole care”, this could be further removed than shared parenting from the in marriage division of care.

As we see, it is argued that the “primary caregiver” in a relationship should be the sole caregiver at the end of the relationship. There are weaknesses in this argument:

        i)            Why should sole custody be the only option considered?

       ii)            There are difficulties in determining who a “primary caregiver” is. What units of measurement are used? Is it time? If so, what of simultaneous activities? If it is tasks, what tasks should be considered?

     iii)            Is parenting synonymous with caregiving? What about such things as interaction with older children, role modeling, play, boundary-setting, or providing a family environment?

     iv)            If there are stages of parenting, then it should not be assumed that skills displayed at one stage demonstrate suitable skills for another.

      v)            The chosen pattern of specialization in an intact family may not reflect the best pattern for after separation. In an intact family many tasks are shared, even if unequally, so the specialization is only partial. Sole custody suggests far less sharing post-separation. Also, circumstances are different, and this may affect both motivations and abilities. In economic terms, specialization when together may reflect comparative advantage, but the post-separation best interest of the child requires consideration of absolute advantage.

     vi)            Parents may not be perfect substitutes for each other, so exclusion of one parent may result in loss of specific contributions that the other parent cannot make.

   vii)            Two parents may be able to provide more time than one alone.

Additional concerns about the measurement of inputs by mothers and fathers are raised by Lareau (2000). Hence she asserts that, “fathers are important members of their families, but their importance centers on their presence and on the meaning that they have for their children (and wives)” (p.431). She refers to both methodological and conceptual concerns giving imbalance in the study of fathers. “We find the study of family life to be disproportionately skewed to selected, usually easily quantifiable, topics and to privilege the views of mothers” (p.431).

A further problem arising from use of the primary caregiver criterion relates to Family Court processes. As the Hastings Family Court co-ordinator explained at a public meeting in Napier on 22^nd March 2000, the first priority when a couple separate is to create stability for the children. This was described in terms of deciding which parent the children would live with as an interim measure until all the information could be considered. In other words, “stability” is defined in physical rather than emotional terms, where the latter would stress maintenance of close relationships with both parents. Pryor and Seymour (1998, p.22) suggest that research evidence favours the emotional stability approach:

“In studies in which they have been consulted, children have been found to endorse joint custody arrangements (Benjamin and Irving, 1989; Rothberg, 1983; Steinman, 1981). In particular, these studies show that joint physical living arrangements did not cause confusion over the arrangements, and avoided the sense of loss experienced by children who enter sole custody when parents separate.”

The court’s approach to interim arrangements appears to be contrary to Article 9.1 of the United Nations Convention on the Rights of the Child, which permits States Parties to take such a step only if determined by competent authorities to be in the best interests of the child. It also means that the interim decision is based not on consideration of the circumstances of the specific case, but on presumptions, such as the mother being the best person to have interim custody. By this approach, the final decision is pre-empted as any pre-separation role will be of secondary importance compared to the status quo at the time of a hearing, if matters progress that far.

Moreover, the primary caregiver concept itself has been questioned. Kelly (1997, p.383) says, “Child development research does not support the distinction between primary and secondary caretakers for children after age 4 or 5 if they have lived in the two-parent home.” Discussion of debate on the concept in New Zealand, including consideration of definitions used, can be found in Birks (1999), section 2.

3) Resulting distortions

The attitudes described above influence the operation of family law and the views of those working in that area. It is notable that those with a legal training are not required to have a wider understanding of the issues and it is doubtful that their legal education adequately equips them for their responsibilities. If we were to draw a comparison with health care workers, it is unlikely that we would feel comfortable if their training included no coverage of the workings of the human body, but merely involved a knowledge of certain loosely defined rules, with much scope for individual interpretation.

There is little critical debate in New Zealand either on the options available or on the effects of current interventions. The published criticism and associated analysis appear to be largely ignored by those responsible for the implementation of family law. Some have suggested that those involved in policy are biased. For example, Fleming and Atkinson write:

“It would help if the application of the child support formula could take better account of the remarriage family situation, including the costs of access visits of non-custodial children, which can be considerable. Talking to some policy analysts about this, I have detected an implicitly punitive attitude towards non-custodial fathers, which is expressed in remarks such as “if a man leaves his wife he deserves what he gets” or “that man’s problem is that he has too many wives”. (Fleming and Atkinson, 1999, p.159)

Similarly, shared custody is ruled out as an option if there is conflict between parents. The reasoning behind this is questionable, as discussed in detail in Birks (2001). It is worth noting also that, in Britain, a Lord Chancellor’s Department (LCD) publication mentions the option of “parallel parenting”, whereby both parents continue to be involved, but they do this independently (Children’s Act Sub-Committee, 2001, para.1.14). This is also mentioned in Pryor and Seymour (1998, p.22):

“Hetherington has sug­gested that 'independent, non-interfering parental relations' are necessary and adequate for joint custodial arrangements to work, and notes that children are readily able to adjust to differing sets of rules and organization between house­holds (Hetherington, 1993, p. 214).”

The above paragraph of the LCD publication also identifies gatekeeping as a problem. Clearly it could be a cause of conflict, in which case we could question the desirability of institutional support for such behaviour.

4) What children see

Children are unlikely to see or understand the situations that parents are placed in. They will learn from their experiences as they see them. These lessons may be in terms of judging what is right or wrong, or what is socially acceptable, or whose explanation to believe. They will form opinions of their parents and of society’s institutions, and will be influenced in their view of what society has to offer them. They will also observe how people react to issues and problems. They may respond to these lessons by copying them, or by reacting against them. They are unlikely to ignore them.

Some possible lessons are listed in Birks (2001, p.64):

1)      From the view that ongoing contact in general and shared custody in particular are unsuitable if there is conflict between the parents: If you have a problem, you should cut off contact (so a small matter may be inflated and never resolved).

2)      From the failure to support the guardianship rights of non-custodial parents: One parent has all the say.[5]

3)      From the separation of child support and access issues, and the lack of accountability for the use of child support payments: A parent can be made to pay child support in a one-sided arrangement with no rights in return, nor any obligations on the receiving party.[6]

4)      From failure to enforce court access orders or penalise custodial parents for disregarding those orders: Court orders (such as for access) can be disregarded without penalty.

5)      From the sort of evidence the court accepts and acts upon: Smears, and false and unsupported accusations can be made and heeded by the Court without investigation (Guardianship Act 1968, section 28).

6)      From the terms the court imposes on non-custodial parents: A parent can be faced with whatever restrictions the Court chooses to impose (Guardianship Act 1968 sections 11.2 and 15.2.a). The Court need give no justification. Non-custodial parents in particular may be left with no parental authority and would therefore be unable to fulfil their parental responsibilities.

The factors giving these lessons can have other flow-on effects. Hence actions of others can reinforce parental alienation:

"A failure to appropriately identify and intervene in the early stages of these cases may result in the alienating parent being given professional support for his/her position, reinforcing the child's need to maintain or expand complaints about the alienated parent. This has the capacity to more firmly entrench the syndrome and to enhance the severity of the dynamics." (Dunne and Hendrick, 1994, discussion)

"... the influential role of other people in the child's life, such as relatives and professionals aligned with the alienating parent, whose endorsement of the program advances the brainwashing process." (Rand, 1997a, p.35)

A child’s involvement in the alienation process can have other harmful effects also. Hence Rand (1997b, p.47) suggests that, "children may learn to get their needs met by fabrication and manipulation" (Rand, 1997b, p.47). Other effects of alienation can include: an extreme lack of concern for the alienated parent’s feelings; polarised views, with the alienated parent seen as all bad; and an identification with the alienating parent which can lead to problems in what Daly describes as the separation stage of parenting as the children move into adulthood as separate people[7]. Rand describes the effects of parental alienation in more detail:

 “Depending on the severity of the PAS, a child may exhibit all or only some of the following behaviors. It is the cluster of these symptoms which prompted Gardner to consider them as a syndrome.

1) The child is aligned with the alienating parent in a campaign of denigration against the target parent, with the child making active contributions;

2) Rationalizations for deprecating the target parent are often weak, frivolous or absurd;

3) Animosity toward the rejected parent lacks the ambivalence normal to human relationships;

4) The child asserts that the decision to reject the target parent is his or her own, what Gardner calls the "independent thinker" phenomenon; 5) The child reflexively supports the parent with whom he or she is aligned;

6) The child expresses guiltless disregard for the feelings of the target or hated parent;

7) Borrowed scenarios are present, i.e., the child's statements reflect themes and terminology of the alienating parent;

8) Animosity is spread to the extended family and others associated with the hated parent.” (Rand, 1997a, pp.27-28)

Although alienating behaviours have been described in a paper by a Family Court judge as emotional abuse of children (Blaikie, 1994), the point does not appear to have been acknowledged.

It is surprising that Battered Women’s Syndrome gets much attention, but there is far less acknowledgement of PAS, although both refer to people being affected by their environment. Calls for greater attention to children’s wishes in custody and access issues should be considered in relation to the environments shaping those wishes and the options presented to the children.

Children may also be unaware of the nature and effects of constraints on non-custodial parents. They then judge those parents according to their actions, rather than their desired actions. Children may choose to see less and less of those parents because they find contact to be unsatisfactory. This may be because the conditions of contact prevent the non-custodial parent from being part of the child’s routine and fulfilling an effective parenting role.

“Again and again, the story is the same: distance makes the heart grow colder. In many instances, visitations started on the grand scale and then trickled to nothing. In part, the visitation trickled to nothing because of the child’s preference. They grew older and less interested in the non-custodial parent. Perhaps sensing that he could do nothing about the growing chasm, the non-custodial parent did little to stem the loss of interest.” (Berner, 1992, pp.63-64)

“Wallerstein and Kelly say that when the non-custodial parent lacks legal rights to share in major decisions, many withdraw. Children see that as rejection. Adult children of divorce bitterly report the diminished contact they experienced as children.” (Berner, 1992, p.64)

“Although the amount of visitation with the noncustodian did not statistically predict poor adjustment, most single-custody children were dissatisfied with the amount of visitation they had. This was not the case with joint-custody children, however, most of whom were content with their arrangement.

More important than the quantity of time spent with each parent was the quality of time. It was clear that the children in joint custody had retained a filial relationship with both parents. The single-custody children, in con­trast, seemed to have an avuncular relationship with their noncustodian.” (Luepnitz, 1982, p.150)

A loss of interest in contact is unlikely to reflect absence of need so much as an inability to meet that need through available contact arrangements. This initial need has been described by several writers. Henaghan et al (1998, p.284):

“The relationship with the non-custodial parent (usually the father) was clearly an important part of the children’s lives…Even in two families where there was high parental conflict, children were devoted to their father (the non-custodial parent) and looked forward to their contacts with him…Continuing relationships with both parents seemed to be an important aspect of helping children to adjust to parental separation.”

And Pryor and Seymour (1998, p.18):

“When asked, most children indicate very clearly that whatever custody arrangement is made, they want continuing contact with both parents. As noted earlier, decisions about custody arrange­ments are made at a time of high emotional arousal. A decision which limits access to a non-custodial parent at that time may be detrimental to the longer ­term well-being of the child. Involvement with both parents in the presence of high levels of conflict is a complex issue. Disputes over property, anger about the reasons for the separation, and other contentious issues are likely to dissi­pate with time, however, leaving room for the development of independent, non-conflicted parental relationships which facilitate joint parental involvement.”

On a personal level, society’s reluctance to recognize the costs of a lost or disrupted relationship to both parent and child was made evident to me in relation to a burglary. My home was broken into and some appliances taken. Within an hour of phoning the insurance company, a glazier arrived to repair the broken window. The police also arrived, filed out a report, checked the scene and arranged for a fingerprint team to come. They also notified Victim Support, although I had said that it was not necessary. Shortly afterwards Victim Support phoned me and later sent a follow-up letter. Mentioning the burglary to friends and colleagues, I received lots of sympathy for the intrusion into my home, the lost goods, and the feelings of “violation” that I must be experiencing. The goods were replaced with new items within weeks.

I see no comparison between the intrusion of a burglary and the intrusion for a non-custodial parent of denied contact, denied involvement in guardianship decisions, denied participation in a child’s routine, and enforced child support payments for up to 19 years with no accountability or guarantee that the money is spent on the child or even that the child realizes that the money comes from the parent. I see no comparison between the intrusion of a burglary and with the denial for a child of his/her right to know and be cared for by a parent, or to have the direction and guidance of that parent. Society similarly seems to see no comparison either, but in the opposite direction, with the latter viewed as far less worthy of concern.

5) Implications for the future

These lessons are not learned by isolated individuals. They are signals given to large numbers of people. According to the Inland Revenue Department there are about 200,000 liable parents and 300,000 children in the child support system.[8] In other words, about one child in four is recorded as having a parent living in another household. Events in these people’s lives send signals to intact families also. There are immediate signals to children as outlined above, but there are longer-term implications also.

For example, our children grow up with ideas about themselves, acceptable behaviour, how to deal with conflict, what their parents are like, whether they are cared for, and how society views them. The discussion above already indicates what some of these lessons may be. Many of the lessons are unhelpful.

They also develop expectations about their position in society as adults. Consider the position of a boy growing up with the Property Relationships Act, student loans, and proposed increases in child support. He could look ahead and, if he is able and studies hard, let us imagine that he could see himself as a family man earning an income approaching $85,000. He would risk losing home and family at the whim of his partner. Under the Property Relationships Act he would then get far less than half the matrimonial property due to his earning capacity.

What would he have to look forward to? Of his take-home pay, if he had a student loan, he could be paying 45% in child support. Out of an extra dollar earned he might see less than 15 cents following deductions. Child support payments could continue for 19 years. He would have no say in how the money is used, but would be expected to believe that it is for his children. For one child, he could be paying $1100 per month from his after tax income. This is not affected by the mother’s income, or by his time with the child, even up to 145 nights a year. Not only would his remaining income be the equivalent of someone earning half his pay, but he would have the emotional burden of being denied a close relationship with his children.

How might this environment affect his willingness to study and build a career, and to make long-term plans? What will the collective effect of these signals be on a whole generation? How will that affect family structures, the cohesion of society, and caring across generations? How will it affect people’s attitudes to their own children if they grow up viewing fathers as people to be sidelined and disparaged? Will they know what fathers have to offer, and will they be willing to take the emotional risks of offering that to their children?

The implications go further than the boundaries of families. Eggebeen and Knoester (2001) consider the effects of fatherhood and men's social connections. They suggest that loss of a regular parenting role also prevents men from being active in many family-based organisations. If so, then not only are many men being excluded from families, but they are being excluded from mentoring and other valuable community roles. It is not clear what they would do with their time and energy if denied these constructive outlets.

People may copy, or react against, the lessons they learn.          In either event, the nature of the lessons and their impact will be significant in shaping our futures. We should be concerned that so little thought has been given to these matters.

References

Berner R T (1992) Parents Whose Parents Were Divorced, New York: Haworth

Birks S (1999) “Parenting and the Family Court: An Economist’s Perspective”, chapter 8 of Birks S and Callister P (eds.) (1999) Perspectives on Fathering II, Issues paper No.6, Centre for Public Policy Evaluation, Massey University

Birks S (2001) “Children’s Rights to Both Parents – the State and the Non-custodial Parent”, chapter 9 of Birks S (ed.) (2001) Children’s Rights and Families: Proceedings of Social Policy Forum 2000, Issues Paper No.10, Centre for Public Policy Evaluation, Massey University

Blaikie O E K (1994) “Emotional abuse of children: some responses from the Family Court”, Butterworths Family Law Journal, March, pp.77-82

Children’s Act Sub-Committee (2001) Making Contact Work, London: Lord Chancellor’s Advisory Board on Family Law http://www.lcd.gov.uk/family/abfl.pdf

Doherty W J, Kouneski E F and Erickson M F (1998) “Responsible Fathering: An Overview and Conceptual Framework”, Journal of Marriage and the Family, 60, May, pp.277-292

Dunne J and Hendrick M (1994) “The Parental Alienation Syndrome: An Analysis of Sixteen Selected Cases”, Journal of Divorce and Remarriage, 21, pp.21-38

Eggebeen D J and Knoester C, (2001) "Does fatherhood matter for men?" Journal of Marriage and Family, 63, (May), pp.381-393

Fleming R and Atkinson T (1999) Families of a different kind, Waikanae: Families Remarriage Project

Hardyment C (1995) Perfect Parents: Baby-care Advice Past and Present, Oxford: OUP

Henaghan M, Taylor N, Smith A B, Gollop M, Gaffney M, and Gold M (1998) “Children’s views of their parents’ separation”, Butterworths Family Law Journal, 2(11), pp.277-285

Julian R (1999) Fathering in the new millennium, Wellington: OCC

Kelly J B (1997) “The best interests of the child: a concept in search of meaning”, Family and Conciliation Courts Review, 35(4), October, pp.377-387

Lareau A (2000) “My wife can tell me who I know: Methodological and conceptual problems in studying fathers”, Qualitative Sociology, 23(4), pp.407-433

Luepnitz D A (1982) Child Custody: A Study of Families after Divorce, Lexington: Lexington Books

Nash M (1992) "Women, Divorce and Social Policy", chapter 10 of Briar C, Munford R and Nash M (1992) Superwoman where are you? Social Policy and Women's Experience. Palmerston North: Dunmore Press

Pryor J and Seymour F (1998), "The Impact on Children of Parents' Separation", chapter 1 of Pipe M-E and Seymour F (eds.) (1998) Psychology and Family Law, Dunedin: University of Otago Press

Rand D C (1997a) "The Spectrum of Parental Alienation Syndrome (Part I)", American Journal of Forensic Psychology, 15(3), pp.23-52

Rand D C (1997b) "The Spectrum of Parental Alienation Syndrome (Part II)", American Journal of Forensic Psychology, 15(4), pp. 39-92

Tapp P and Taylor N (2001) “Where should the focus be in the aftermath of parental separation: children’s rights and interests, or parental responsibility/rights?” Childrenz Issues, 5(1), pp.10-15

[1] Taken from a web site on the subject at:  http://www.spartacus.schoolnet.co.uk/FWWfeather.htm

[2] http://www.spartacus.schoolnet.co.uk/Wfirst.htm

[3] 10 May 2000, http://rangi.knowledge-basket.co.nz/hansard/han/text/2000/05/10_054.html

[4] Page 213 of Nash (1992)

[5] Judge Inglis has said that “…a parent who is deprived of the right of custody is in reality left with only the

shell of guardianship”. P.264 of Dadelszen (1995).

[6] Note that this would be considered abusive in an intact relationship according to the Duluth model.

[7] See Birks, 1999, section 2.5

[8] Inland Revenue figures for 31 August 1999 indicate 200,738 persons paying child support, in relation to about 300,000 children.