Making decisions about children in

the context of family law

Historical, empirical and clinical reflections on the place of legal and social science principles

Lawrie Moloney

Outline Making decisions about children • From presumptive to indeterminate principles • Perspectives on the “Best interests of the child”

• Law • Behavioural sciences • Societal norms • Political lobbying • Future predictions

Shared parenting as a response to social forces Concluding thoughts

Post-separation decisions about children Key principles over time

Former presumptive principles Paternal ownership: Roman times to late 19th century Maternal preference: Late 19th – late 20th century Good/ bad parent: Child to “innocent party” Major contemporary principles “Shared care presumption” (subject to best interests) Approximation presumption (subject to best interests) Best Interests of Child (“no overt presumption”)

“Best interests of the child” The problem of consistency and the problem of multiple lenses

Law Behavioural sciences Societal norms Political lobbying Future predictions as underpinning principle

Legal Dilemmas Personalized, intuitive or “wise” decision making

Every family and every child's circumstances are different and

the courts will continue to make decisions on this basis. (UK Department of Education/Ministry of Justice 2012 par 4.4

Reasons for judgment, necessarily in many cases, especially in a finely balanced case, are a rationalization of a largely intuitive judgment based on an assessment of the personalities of the parties and the child. (Italics added)

Murphy J (High Court Judge) in Gronow vs Gronow .

Legal Dilemmas

Legal precedent and the search for “objective truth”

[A]ll that has occurred is that the court has not yet determined which of the factors of most relevant to welfare should be given pre-eminence over other matters.

Full Court in In the Matter of Smythe [T]he possibility that the facts and circumstances of a residence case can be

finely balanced [has been] rejected by the majority of the Full Court of the Family Court … In such circumstances the court … has not sufficiently scrutinised the facts and circumstances presented to it concerning the best interests of the child.

Dickey (1997).Family law – 3rd edition. Commentary on the case of Smythe

Legal dilemmas Conflating children’s cases with property cases

‘It is plainly important [that] there be general consistency from one case to another underlying notions of what is just and appropriate in particular circumstances. Otherwise, the law would, in truth, be but the ‘lawless science’ of a ‘codeless myriad of precedent’ and a ‘wilderness of single instances’

Deanne J in Mallet’s case (property case)

Behavioural Science Dilemmas

Appeals to scientific standards Psychologists’ recommendations (in children’s disputes) are based upon articulated assumptions, interpretations, and inferences that are consistent with established professional and scientific standards.

American Psychological Association (2010) Guidelines for child custody evaluations in family law proceedings.

Italics added

Behavioural Science Dilemmas

The limitations of rationality When one examines individual incidents of

decision-making [about children] and attempts to unravel the factors responsible for the course of action adopted, it soon becomes evident that we are confronted with a highly complex, frequently obscure and far from rational process.

Rudolph Schaffer (1998 p 2). Making decisions about children.( Italics added)

Behavioural science dilemmas Shifting understandings of attachment

The bond between a child and a good mother … expresses itself in an unrelenting and self-sacrificing fondness… Fathers and stepmothers may seek to emulate it … But the mother’s attachment is biologically determined by deep genetic factors, which can never apply to them.

Epperson v Dampne (1976) Mr Justice Glass

Infants do not have gender biases when it comes to attachment formation. Their bias is for responsive, attuned predictable, warm care within one consistent caregiving relationship, and then, subsequently, others.

McIntosh (2011 p, 424)

The broader question of societal norms Deciding what is best for a child poses a question no less

ultimate than the purposes and values of life itself. Should the judge be primarily concerned with the child’s happiness? Or with the child’s spiritual and religious training? [or with] the child’s ‘economic productivity’ …? Are the primary values in life in warm interpersonal relationships or in discipline and self-sacrifice? … [C]ustody statutes do not themselves give content or relative weights to the pertinent values. [T]he judge … finds neither a clear consensus as to the best child rearing strategies nor an appropriate hierarchy of ultimate values.

Mnookin (1975 p 260). Emphases added

Predicting the future The problem of the normative vs. the particular

Based on the collective evidence to date - in a

multitude of domains, including cognitive, social, emotional, and psychopathological - the best that can be said is that there sometimes is very limited support for the belief that earlier events are connected to later ones.

Lewis (2001 p 74) Issues in the study of personality development. Psychological

Inquiry, 12(2), 67-83.

Predicting the future from clinical observation

Beyond the best interests of the child.

Goldstein, Freud and Solnit (1973).

We cannot definitively say, based on attachment assessment, this child should be with this parent more than with that parent. Srouf & McIntosh (2011). Divorce and attachment relationships: The

longitudinal journey. Family Court Review, 49(3), 464-473

Predicting the formation and structures of future families

It is no exaggeration to say that the [Western] family changed more dramatically in the latter half of the twentieth century than in any comparable span of time in our history … This transition has seen many family practices revised, if not reversed or abandoned. Furstenberg (2011, p. 192) “The transformation of the American family”

Future families: what will they look like?

Multiple perspectives on “shared parenting”

•Legal argument (e.g., rights of child) •Social science argument (e.g., fathers as nurturers) •Broader social argument (pragmatics of paid work) •Political lobbying (often reduced to “gender wars”)

Social forces linked to focus on “shared parenting”

Women’s increasing participation in the paid workforce

Changing perceptions of fatherhood Broadening understandings of attachment The UN Convention on the Rights of the Child The complex issue of absent dads The discomfort of indeterminacy

See Moloney, Weston & Hayes (2013)

Concluding thoughts – social forces

Social forces shape our deliberations about what is best for children (and their parents). Family members make decisions in the shadow of these forces every day Parents are constantly balancing competing needs Can the centre hold?

Concluding thoughts – the problem with “time”

Separated parents must normally create two overlapping centres. Courts deal with the nuts and bolts of this creation – that is, with the distribution of parental time From child’s perspective, time is not the main game

Concluding thoughts – a relationship perspective

“Any schedule can work. Or none can. Making a parenting plan work depends on you, your ex and your relationship. Neither judges nor psychologists possess special wisdom or mysterious tests that can tell you what is best for your children.”

Emery (2012) Renegotiating family relationships

Concluding thoughts – what’s new is old

Wisdom and compassion – basis of all good decisions Law attempts to reflect social norms Social norms informed by core human needs Social sciences can throw some light on human needs Problems addressed by social sciences are not new - findings are largely contextual

Concluding thoughts – what’s new is old

Some examples Temperament studies (ancient Greeks), Attachment studies (conditions for love to flourish) Conflict studies (Machiavelli, Tolstoy etc) Grief and loss studies (Shakespeare etc) , Developmental stages (Initiation rites)

Research supporting practice Ideas adapted from Smyth & Wolcott (2004) AIFS Research Report No 9

Clinical assumptions Research literature Each child and each family is unique No single arrangement is best

Children love/want/need both parents. Extended family important

Good ongoing relationships link to good outcomes. Safety main caveat

Disentangle couple r/ship from parenting obligations

Children do best when kept out of the conflict

How parents relate is critical Decisions about time subordinate Money is important: often insufficient Link between poverty/poor outcomes Good dispute resolution process as important as good outcome

The more formal the process, the less satisfied the client.

“Good divorce” possible/ worth effort Most parents are able to cooperate

Breakthrough research?

Neurobiology of neglect, persistent high conflict, fear, trauma etc has great promise This is where law (with its strength in sifting evidence) and science (with its capacity to push the boundaries of our knowledge) may have a particularly productive partnership.

Conclusion

Tell them it’s complicated – but it’s usually OK

Imogen Aged 9