Contemporary Community Views o n Best Outcomes for Children of Separating Parents

1. Contemporary Community Views on Best Outcomes for Children of Separating Parents Dianne McKillop & Deirdre Drake School of Psychology, Edith Cowan University Perth, Western Australia d.mckillop@ecu.edu.au d.gdrake@ecu.edu.au

2. Context • “… changes in family structures, processes, and functions are a strong feature of the contexts in which children develop in the 21st century.  Changes in social structures, attitudes, and beliefs are also rapid and profound” (Jan Pryor, 2005). • Investigating social perceptions of the legal principle “the best interests of the child” (BIC) as it relates to decisions about child residence and contact. • Contemporary family structures can make such decisions even more complex, e.g., re-partnering, reproductive technologies that have led to different social and biological roles. • Decisions, and perceptions of decisions, impacted by: • legislation (e.g., s60B and s68F of the FLA); • conventional wisdom (e.g. “blood is thicker than water” and “a child’s place is with its mother”); • strong emotional responses generated by family and child issues in the parties involved and in sections of the public; • occasionally, by case law (e.g., re Evelyn). 2

3. Purpose and Aims There is an imperative to look at “some key areas of Australian family law and inquire whether they might have the potential to generate a sense of unfairness because they may not conform to what many people think is right” (Chisholm, 2001, p. 4). Purpose: to examine social perceptions of the best interests of children in the context of the dissolution of four different family circumstances where residence and contact is in dispute. Aims: to examine the public’s reasoning about residence and contact in cases involving issues that arise in contemporary families – and on which courts and the public may differ. 3

4. Method • 136 participants (randomly selected from Perth metropolitan area) • 45 male, 83 female • 92 partnered, 36 no partner • M age 47.85 (range 18 – 74) • M SES moderate (range low – very high) • 55% had either a trade or an u/grad degree • random assignment to experimental groups • each participant responded to four scenarios • task was to choose a residence/contact judgement and comment on reasoning 4

5. Scenarios Scenarios A and B concerned biological and ‘social’ parenthood. Scenarios C and D involved parental ‘worthiness’. 5

6. Scenario AStep-parent Scenario Skolnick (1998) argues that US Courts privilege biological ties over social relationships but that this may be at odds with public reasoning. Scenario A asked participants to consider whether a child who had been living with a biological parent and a step parent for a number of years should continue to live with the step parent after the death of the biological parent – or be transferred to live with the (non-custodial) biological parent, with whom the child had had little prior contact. 6

7. Scenario A – one example Mr and Mrs Smith were married for several years in the early 1990s. A daughter, Sarah was born during the marriage but the couple separated when she was one year old. Mrs Smith married Mr Brown when Sarah was two and he became her step-father. He was very good with Sarah and they formed a happy family. Mr Smith had very little to do with Sarah after Mrs Smith remarried. However Mrs Smith died of cancer when Sarah was 9 years old. Mr Smith then applied to the court for an order that Sarah be sent to reside with him; Mr Brown wants her to continue to reside with him. How do you think the Court should decide this case?(please put a mark on the line below to indicate your view) Sarah should reside with Mr Smith. Sarah should reside with Mr Smith, some contact with Mr Brown. Sarah to divide her time equally between the two households Sarah should reside with Mr Brown, some contact with Mr Smith. Sarah should reside with Mr Brown. 7

8. Scenario AResultsStep-parent Scenario 8

9. Scenario AComments “[Step-parent] is the only father the [child] has known.” (female, 43) “[Biological parent] has until now shown little interest …” (male, 45) “Continuity for the child…. [Child] is too young to decide….some contact allows the potential for a relationship with [biological parent] to grow.” (male, 52) “[Biological parent] did not know the child and forfeited [child’s] affection by choice.” (female 56) “It was bad enough for the child to lose [deceased parent] – she should stay with her [step-parent] whom she knows and who wants her – she should however get to know her [biological parent].” (female, 65) 9

10. Scenario AStep-parent Conclusions Gender of parent and gender of child were irrelevant to the residence decision. There was no residence preference for the parent who was the same sex and the child. Overall results were at odds with Skolnick’s (1998) assertions of preference for biological parenthood in US Courts. 10

11. Scenario BSurrogacy Scenario In 1998, the full court of the FCA ruled that a woman (S) who had agreed to carry a child for a friend (Q) (i.e. in a private surrogacy arrangement) should have custody of the 17-month-old child who, up until then, had been living with the friend (Q) and her husband since birth. Scenario B examined the competing claims of surrogate versus ‘adoptive’ parents. It was specifically based on this case, “Re Evelyn” [1998] FamCA 55 (15 May 1998). 11

12. Scenario B – one example Mr and Mrs D had been married for seven years when they went to see a medical specialist about the fact that they were having trouble conceiving a child. Tests showed that they would not be able to have a baby together and they started to think of trying to adopt a child. But then Mrs T, a friend Mrs D had known since before she was married, offered to have a baby for them. Mrs T felt sorry for Mr and Mrs D. She was married with three children of her own and her husband agreed that it was a good idea. So Mrs T carried and gave birth to a baby girl, Helen, who was conceived through the combination of Mrs T’s own egg and Mr D's sperm. Therefore, Helen was the biological daughter of Mrs T and Mr D. Mr and Mrs D stayed with Mr and Mrs T for the birth and for a week afterwards before taking Helen back to their own home in another State. When Helen was 10 months old Mrs T decided she had made a mistake and travelled to the Ds’ home to take Helen back. The Ds want to keep Helen. How do you think the Court should decide this case?(please put a mark on the line below to indicate your view) Helen to live with the Ts, no contact with the Ds. Helen to live with the Ts, some contact with the Ds. Helen to divide her time equally between the two households Helen to live with the Ds, some contact with the Ts. Helen to live with the Ds, no contact with the Ts. 12

13. Scenario BResultsSurrogacy Scenario 13

14. Scenario BComments “An agreement was made. You cannot take a baby from Mrs D who has bonded and been a mother …” (female, 30) “Mrs T made the decision in the beginning. There can be no change …” (female, 53, original underlining) “Mrs T offered to have the baby knowing that she wouldn’t be able to keep her….Mrs T waited 10 months before she took any action.” (male, 26) “The Ts already have 3 children. They made this agreement and should be thinking of the childs best interests.” (female, 47) “She agreed originally to have the child for her friend and therefore should stick to her original agreement.” (male, 60) 14

15. Scenario BSurrogacyConclusions The four possible combinations of whose genetic material produced the child had no impact on the decision. In Re Evelyn, the full court of the Family Court of Australia ruled that the child should reside with the (surrogate) biological mother and her husband. Therefore, these findings are in direct contradiction of that decision. Once again, the presence of a psychological parenting relationship was viewed as in the better interests of the child than a purely biological relationship. There was a strong emphasis on the binding nature of the original agreement. 15

16. Scenario CAffair Scenario Parental ‘worthiness’. Moloney (2000), in the context of examining gender biases in judges’ reasoning, argued that men are granted residence of their children in contested cases where women are seen to be ‘blameworthy’ in some way. Scenario C involved a parent who had an adulterous affair, leaving the marriage to set up a new household with his/her lover. 16

17. Scenario C Mr and Mrs P have been married for 12 years and have two daughters. Mr P has always thought that the marriage was a happy one, however Mrs P has been secretly having an affair with a family friend (Mr J) for the last 12 months and has decided to leave Mr P to live permanently with Mr J. Mrs P and Mr J go away on a holiday together for several months and, when they return they move in together. Mrs P now wants the girls to live with her. How do you think the Court should decide this case?(please put a mark on the line below to indicate your view) Girls to live with Mrs P, no contact with Mr P. Girls to live with Mrs P, some contact with Mr P. Girls to divide their time equally between the two households Girls to live with Mr P, some contact with Mrs P. Girls to live with Mr P, no contact with Mrs P. 17

18. Scenario CResultsAffair Scenario 18

19. Scenario CComments “Short duration of relationship of [leaving parent] and [new partner].” (male 34) “The [children] have been brought up in a happy environment and both parents love them.” (male, 45) “… better to leave children in their own homes where they are settled and happy – they are not property to be fought over!” (female, 46) “[Leaving parent] decided to leave knowing the implications of such a decision.” (female, 60) “[Leaving parent] can’t have his cake and eat it too.” (female, 52) “[Children] will still need their [leaving parent].” (female, 35) 19

20. Scenario CAffairConclusions The parent who had the affair was seen by some to be less ‘worthy’ for not sublimating his/her needs or desires for the sake of the children. However, almost nobody thought that the ‘left’ parent should have sole residence and, once again, the gender of parent or child was not relevant. Stability of residence and parenting was seen as most important for the children. Support for equal residence (28.9%) interesting in light of debate on a rebuttable presumption of shared parenting. 20

21. Scenario DBusy Parent Scenario Parental ‘worthiness’. Moloney (2000) cited the following example of gender, blameworthiness, and residence: Women can be regarded as ‘unworthy’ parents for failing to put their children’s interests above their own (e.g., having a career). Conversely, men are assumed to want to work full time but support available to them in a care-giving role (e.g., from a new partner or mother) is looked on favourably. In Scenario D, one of the separating parents has little time to spend with the children but has family support; the other has always had more day-to-day involvement in parenting. 21

22. Scenario D Mr and Mrs Miller have been in a relationship for 9 years and have two sons. Early in the relationship they both worked full time, however following the arrival of the children Mr Miller has worked only part-time. He has had by far the most involvement with the boys as Mrs Miller has a demanding job and is also studying for further qualifications. The Millers’ relationship has been increasingly unhappy in the past year and has now broken up with quite a deal of ill-feeling between them. Both parents want the sons to live with them. Mr Miller says that the children belong with him because Mrs Miller does not have the time to devote to them. Mrs Miller argues that although her job is demanding she has the full support of her parents who are retired and can help out when necessary. How do you think the Court should decide this case?(please put a mark on the line below to indicate your view) Boys to live with Mrs Miller, no contact with Mr Miller Boys to live with Mrs Miller, some contact with Mr Miller Boys to divide their time equally between the two households Boys to live with Mr Miller, some contact with Mrs Miller Boys to live with Mr Miller, no contact with Mrs Miller 22

23. Scenario DResultsBusy Parent Scenario 23

24. Scenario DComments “Continuity for the children, least disruption to their lives…” (female, 53) “[Involved parent] has been the primary care-giver in this situation and the [children] should stay with [this parent]…” (female, 46) “Neither parent has really done anything wrong.” (male, 26) “[Involved parent] … shows commitment.” (male, 47) “It seems both parents have equal rights to the children, after all, presumably [busy parent] has been working so hard for the good of the family.” (female, 69) “Kids need contact with both parents.” (female, 31) 24

25. Scenario DBusy ParentConclusions Again, no gender bias was demonstrated in results. Rather than the busy parent being seen as less ‘worthy’ for not sublimating his or her needs or desires for the sake of the children, the decision criteria appeared to be stability and continuity. Again, there was support for shared parenting. 25

26. Conclusions There was no gender bias in any of these decisions. Responses to the first two scenarios indicate that participants valued psychological parenting relationships over purely biological ties. This suggests that public reasoning is inconsistent with judicial reasoning in cases such as that of the Australian High Court in Re Evelyn and those (in the US) described by Skolnick (1998) as reflecting a “new biologism” (and that blood is not thicker than water). A majority of participants would grant residence to a parent whose spouse had left them and to a parent who had more time available to spend with children in order to ensure continuity of care rather than to punish a ‘bad parent’. In these ‘parent worthiness’ scenarios there was also support for shared parenting that was not evident in the biological vs social decisions. 26