Residence discussion its pros and cons - Essay Example

Residence discussion its pros and cons This research paper is focused on shared residence discussion; its pros and cons, influence on children’s interests and in the research paper the real value of shared residence in judicial and social system of the UK is defined. The paper is outlined as follows: A) Introduction; B) General discussion: 1) Children Act 1989; 2) The reasons for shared residence; 3) Shared residence nowadays; 4) Children interests; 5) Shared residence order in practice; 6) Divorcing children: parents and the State influence; 7) Pros and Cons of Shared Residence. Thesis: Shared residence is supposed to endow the child with multi-sided care and support provided by both parents. Introduction A great interest to shared residence in the UK is explained by desire of justice system to serve for the sake of child’s interests. After divorce the child looses contact with one of his parents without strong background. Court system should be directed not on aggravation of family problems, but on resolving them. Every country should treat its children as the greatest treasure. Naturally, under any circumstances and in any situation children’s interests should be of primary concern. If the contact with one of the parents is lost, then future of the child is under the threat of problems and disadvantages. Divorce leads to separation and social dysfunction of the family; but it is not separation itself that is harmful for children; it is the way divorce is handled. The justice system of the United Kingdom is involuntarily daily involved into exclusions of such kind1. Exclusion of one parent makes the child think that the latter is bad; consequently he may think that a part of him is spoiled too. Thus the child’s self-esteem and self-assurance are damaged. These dreadful outcomes of divorces could have been changed by the judicial system, if they had eliminated discrimination of one parent with regard to another. Child’s best interests wouldn’t be protected if he lived with one parent; fit biological parents have equal rights and play equal roles in the lives of their children. Child’s best interests are in active involvement in his life of both fit biological parents. The Government issued Children Act 1989 is considered to be an initial step in shared residence initiation2. In spite of the fact that many years passed after Children Act adoption, shared residence is still considered to be a novelty in the UK. USA and Canada have more loyal attitude to shared residence and this decision after divorce is considered to be an optimal one. The UK Government should care about the fact that children alienated from one of their parents suffer emotional discord and turbulence. When children have to make choice which parent to ‘prefer’, they feel great emotional stress and self-sacrifice. Therefore Equal Parenting Council approves of shared residence. “The absent parent” as a concept should be eliminated, because the parent named in such a way by the Court doesn’t necessarily want to leave the life of his child3. A mutual cooperation of parents, their advisors, family court judges should lead to shared residence, which has been positively adopted in other countries for many years already. Children Act 1989 The Children Act (1989) under section 11(4) proclaims: “A Residence Order may be made in favour of more than one person at the same time, even though they do not live together. Such orders which specify in detail the periods during which the child is to live in the different households, are known colloquially as 'shared residence orders”4. This excerpt from the document witnesses the launch of shared residence. A spirit of massive reform can be sensed between the lines of this document. Previously, a sole residence was considered to be in the best interests of the child. The reasons for shared residence are as follows: increased number of “hands on” fathers (those who were actively involved in the process of upbringing during relationship); the concepts “residence” and “contact” have a strong emotional charge and ‘the absent parent’ may consider them indignant; the growth of campaigns and documents directed on equalization of parents’ positions after divorce5 (e.g. the Green Paper “Parental Separation: Children’s Needs and Parents’ Responsibilities” (July 2004) focused on child’s equal time spending with every parent). Shared residence nowadays Currently there is no need to have certain underpinnings to apply for shared residence. Positive relationship between parents is not of primary concern; parents should live next to one another with distance no longer a bar; if parents live in different countries, then the children will spend equal time in each country. 50/50 time spending isn’t a necessity; time ratio can be chosen by parents themselves. Actually, modern concern about shared residence is supported by the Courts because children benefit due to emphasis on equality of both parents and their homes in the lives of the children. Children interests In order to make an assessment of children’s interests after shared residence adoption, it is relevant to appeal to an empirical study conducted in 20026. Children involved in shared residence arrangements claimed that shared residence wasn’t a perfect remedy for them. Difficulties and problems were not eliminated. Shared residence solves current problems of parents, but the future of children can be full of difficulties. From another point of view, children perceived shared residence as positive outcome, because their interests were of primary concern. In order to make shared residence a general practice, courts should make this option to be the starting point. In such a way every child would be guaranteed to have healthy relationships with both parents. Consequently, advantages of shared residence for children in accordance with psychologists Bauserman and Spruijt can be summed up as follows: decrease of depression, violence, lying etc; high degree of responsiveness, sociability, compromising; fewer school problems among boys and cheerful communication among girls7. These studies showed the necessity and importance of mother’s and father’s role in the child’s upbringing. Father influenced on “pro-social development and moral behavior improvement in boys and girls in particular”8. The abovementioned facts witness that shared residence is beneficial for the children. Emotional turmoil after divorce should be decreased both in children and their parents9. In the researches conducted by Court Reporters and social workers anxiety indications and stress factors among children can be usually seen. Nevertheless, the approaches to child’s emotional conditions are often focused on shortcomings of parental divorce and interests of the child are left without any response: “When legal conflict is high, frequent (contact) visits were linked to fewer behaviour problems in the children; i.e. reduced visiting had detrimental effects on behavior in high conflict situations10. Thus UK judiciary practice is not fully concerned about shared residence. Of course, it exists as an option and if it is beneficial for the child, then the Court underlines that shared residence is the best way out for both parents and their child. Actually, shared residence is relevant when both parents are equally concerned about upbringing of their children and are law-abiding citizens. Judiciary attitude to shared orders in the UK can be clearly seen in the Children Act 1989 Guidance and Regulations, Volume 1, by the President of the Family Division who discussed shared orders in paragraph 2.2(8) at page 10 and these statements were published in 1991: “...it is not expected that it would become a common form of order, partly because most children will still need the stability of a single home, and partly because in the cases where shared care is appropriate there is less likely to be a need for the court to make any order at all”11. Further on the President of the Family division claimed that for the sake of child’s benefit, successful development and multi-sided upbringing, shared residence orders are not underestimated. These orders don’t question the role of any of both parents; vice versa the role of each of them is valued and taken into account when the Court assigns its decision. Shared residence order in practice Further on it is possible to underline that there was a case of D v D (Shared Residence Order) (2001) 1 FLR 495 [1], which was “concerned about shared residence of children in spite of voluntary participation of one of the parents”12. The Court puts high on the agenda interest of the child and in case these interests are perfectly satisfied in shared residence, then no other circumstances or discussion of certain benefits is required. The Courts are concerned about interest of the child first of all; – these are requirements of Children Act 1989. Nevertheless if the child is very young then it is informally preferred for the child in the Court to be under one parent guardianship. There is also an opinion that in case both parents are fit, there is no need to prove their right for shared residence order; divorce doesn’t imply destruction of ex-spouses parental qualities. In case when children are older, it is easier for the Court to come to a relevant decision, because the opinions of older children are always taken into account by the Courts. On the following example it is clear that every case for shared residency is properly considered by the Court and local authorities. The issue of hostility addressed in case 2 FLR 636 (2003) was focused on mother who had made her children blame their father and paternal grandparents for abuse13. Fortunately, in the process of investigation children revealed the truth and renewed their relationship with father. Of course, the decision was to settle children with their father. This case is an example of undoubted decision made by the Court. Though there are such cases when a lot of issues must be taken into account by the judge; moreover if there are two children there is a possibility to reside for one of them with one parent and for another one, with another parent respectively. Family Law is characterized by peculiarities of every case due to facts’ uniqueness. Shared residence is not always regarded as the best way out by either of parents. Thus there were examples, when in spite of parents’ will shared resolution order was assigned. The case of 2002, 1 FCR 177, where “a sole order was varied by permission to a joint order partially because a joint residence order underlines both parents on an equal responsibility, is another interesting possible outcome of shared residence order”14. In any case, shared residence order implies self-assurance of ex-spouses as good parents and witnesses their well-being. There are also numerous examples of judiciary decisions when after divorce it is necessary to deal with children’s residence. An emotional aspect of such kind of cases is an additional and turbulent factor for both parents and children15. Initially parents are hostile to one another, but their negative emotions destruct not only their inner worlds, but also those of their children. Solicitors’ interventions in family relationship, expenses on court proceedings, – all these factors prevent parents from their normal way of life. Having paid a proper attention to all these negative outcomes of cases mentioned above, it is necessary to have children interests as the primary concern. From this point of view, shared residence order is the best decision taken by the Court, of course, in case of fit parents16. In accordance with studies of family relationship after divorce, families with shared residence have fewer conflicts than those with sole residence. First of all, this fact can be explained by the underlining of importance of other parent in your child’s life. Thus potential conflicts are supposedly prevented. Secondly, in case shared residence is preferred by the parents, then the Court witnesses that future and welfare of the child is really essential for both parents. Consequently, if both parents are involved in social, educational and psychological development of their child, then his positive and efficient upbringing is guaranteed. Parents with shared residence are granted with Parenting Responsibility. PR means that each parent has equal rights in partaking in life of the child. Thus other advantages of shared residence are: family life continuation propagation; parental responsibility of both parents; responsibility of both parents to support their children financially; single parenting hardships’ reduction; equal communication of the child with both parents; child’s assurance in having two homes (of both parents)17. Divorcing children: parents and the State influence In order to take into account child’s interests, not only parents, but also Government has to put all their efforts in order the child could be emotionally stable and his usual life wouldn’t be greatly changed after divorce. The UK judicial system’s approach to divorce is isolated from handling the matter (divorce); it is focused on the best interests of the child. Unfortunately, such kind of good intentions may fail, because of misconception of what the child’s best interests actually mean. In order to find out to what extent Government should intervene in the process of divorce, it is relevant to determine what role parents play in the process and after divorce in their child’s life18. Disturbed behavior of the child is only a peak of the iceberg. Anxiety or disruptive behavior in children may last starting from the beginning of divorce process till its completion and even further. School work is often neglected by the child; he shows indifference to the process of study and has fewer chances to enter the university19. Psychological problems next to subconscious desire of self-destruction can also appear (earlier marriage and divorce, lower earnings and less prestigious occupations etc) 20.Thus ‘downward social mobility for the children’ may be another harmful consequence of divorce21. Long-term effects after divorce may be explained by divorce influence starting from childhood and penetrating into every stage of the child’s development (education, recreation, independent living of the child, and beginning of reproduction)22. Long-term effects are not necessarily applied for all the ‘divorcing children’. It is proved that those children, who have less success in education, can more probably undergo earlier marriages and lower occupational statuses23. In order to eliminate negative outcomes of divorce on the child, it is relevant to propagate the most loyal model of divorce order for the child. “Divorce is for adults, not children”, – this slogan sets the tone for social, governmental and judicial attitude to divorce. Parental support after divorce next to participation of both parents in the process of upbringing and life development of the child should be guaranteed by the Government. Thus ex-spouses can’t regulate consequences of divorce themselves; they involuntarily follow the Court’s regulations. At this point marriage isn’t considered as legal institution anymore. The Government intervention in the process of divorce plays a crucial role, because it can guarantee decrease of divorce financial impact24. In such a way, welfare of children is guaranteed and child’s best interests are taken into account. Financial support is one of the most important sustaining factors for the child. Financial support guarantees proper health care, educational possibilities and future perspectives. Indeed, the Court can’t influence emotions and feelings of ‘divorcing children’. Vice versa, legal procedures intensify negative influence of divorce consequences because private conflicts become available for public through an affidavit25. Legal procedures don’t take into account emotional aspect of divorce, which is concentrated on the deepest feelings of anger, love, hate26. Pros and Cons of Shared Residence Shared residence is not always supported by the Government. As it was motioned above, shared residence is often perceived as an option when its efficiency is indisputable. The sole residence is preferred because it provides the child with stability. Since the beginning of 80s, shared residence has been widely discussed in different researches and studies. Thus researchers of shared residence are divided into opponents and proponents of this social phenomenon. Coller, Kruk, Thompson and others present positive attitude to shared residence in their studies. Negative outcomes of shared residence are expressed by Kiernan, Cowen and others. Theoretical background of shared residence study is dualistic. In accordance with the study conducted by Kline, Wallerstein et al in the mid of 80s, it was found out that only 38 percent of children from shared residence situations were more successful than children from sole residence’ situations27. Such low degree of satisfaction from shared residence is explained by the researchers through comparison of children’s wanderings from one parent to another with yo-yo. Nevertheless it is also argued in this study that such kind of wanderings are nothing in comparison with potential benefits, adjustments and future ways of the child’s development. The study by Kiernan claims that children from families with shared residence experienced greater care from both parents28. Opponents are also focused on relevance of court’s right to make order of shared residence in spite of one of the parent’s will. They tend to claim that coerced attitude to shared residence will inevitably lead to a greater number of conflicts among parents thus influencing their child’s life. Consequently, Thompson underlines the importance of both parents’ agreement to have a shared residence order29. Therefore opponents generally make an emphasis on disunity of shared residence order. They appeal to judicial practices of previous years when a mother was a resident parent30. At that time the child lived under stable circumstances with less changes and adjustments. Nowadays this idea is argued many times. Conclusion Shared residence is supposed to endow the child with multi-sided care and support provided by both parents. Moreover, shared residence pays attention to the role of father whilst earlier father’s rights were beyond proper consideration. Current social tendencies imply to turn discussion of shared residence to the search for equality of opportunity. A progress in discussion should be made in direction to father’s rights consideration from maternal domain adjustment. Therefore currently there is an assumption, tending to a prohibition in the framework of “court-ordered outcomes, against shared residence in the UK”31. This tendency can be explained by former values and traditions of judiciary and society in determining gender roles and marriage values. Accumulated number of different studies and researches on shared residence underline its crucial meaning for British modern society. Works cited 1. Amato, P. R., et al., 1991. Parental Divorce and the Well-Being of Children: A Meta-Analysis. Psychological Bulletin, 110, pp. 26-46. 2. Baker, A., et al, 1996. Post divorce parenting - rethinking shared residence. Child and Family Law Quarterly, 8 (3), p. 217. 3. Bauserman, R., 2002. Child Adjustment in Joint-Custody versus Sole-Custody Arrangement: A Meta Analytic Review. Journal of Family Psychology, 16, pp. 91-102. 4. Bumpass, L. L, et al., 1991. The Impact of Family Background and Early Marital Factors on Marital Disruption. Journal of Family Issues, 12, pp. 22-42. 5. Coller, D. R., 1988. Joint Custody: Research, Theory and Policy. Family Process, 27(4), pp. 259-269 6. Cowan, D. B., 1982. Mother Custody Versus Joint Custody: Children’s Paternal Relationships and Adjustment. Dissertation Abstracts International, 43A, 726, UMI order number, 82-18213. 7. Cretney, M.S., 1998. Law, Law Reform, and the Family. New York: Oxford University. 8. Flouri E., et al., 2002. Childhood Predictors Of Labor Force Participation In Adult Life. Journal of Family and Economic Issues, 23, pp. 101-120. 9. Flouri E., et al., 2005. Adolescents’ Perceptions Of Their Fathers’ Involvement: Significance To School Attidudes. Psychology In Schools, 29, pp. 575-582. 10. I fought for the right to see my son, 2001. The Telegraph, 15 Oct. 11. Jacobs, J. W., 1986. Divorce and Child Custody Resolution: Conflicting Legal and Psychological Paradigms. American Journal of Psychiatry, 143, pp. 192–197. 12. Kelly, J. B. et al, 2000. Using Child Development Research to Make Appropriate Custody and Access Decisions. Family and Conciliation Court’s Review, 38, pp. 297-311. 13. Kelly, J. B., 1988. Longer-Term Adjustment in Children of Divorce: Converging Findings and Implications for Practice. Journal of Family Psychology, 2, pp. 119-140. 14. Kiernan, K. E., et al., 1997. Parental divorce during childhood: Age at first intercourse, partnership and parenthood. Population studies, 51, pp. 41-55. 15. Kruk, E., 1993. Promoting Shared Parenting After Separation; A Therapeutic/Interventionist Model of Family Mediation. Journal of Family Therapy, 15(3), pp. 53. 16. Lovorn, R., 1991. Why Women Join Fathers Rights Groups. Athens Banner Herald, 3 Oct. 17. Maclean, M. et al, 1994. Families, Politics and the Law: Perspectives for East and West Europe. New York: Oxford University. 18. McMurray, A., et al., 1992. Influences on Parent-Child Relationships On Non-Custodial Fathers. Australian Journal of Marriage and Family, 14 (3), pp. 151-159. 19. Mitchell, A., 1985. Children in the Middle: Living Through Divorce. London: Tavistok Publications. 20. Roman, M., et al., 1978. The Disposable Parent: The Case For Joint Custody. New York: Holt, Reinhart, Winston. 21. Spruijt, E., et al., 1997. Transitions in Family Structure and Adolescent Well-Being. Adolescence, 32, pp. 897-911. 22. Thompson, R., 1994. The Role of the Father after Divorce. The Future of Children, 4(1), pp. 210-235. 23. Wallerstein, J. S. et al, 1980. Surviving the Breakup: How Children and Parents Cope With Divorce. New York: Basic Books. 24. Warshak, R. A., 1992. The Custody Revolution: The Father Factor and the Motherhood Mystique. New York: Simon, Schuster. 25. Weiss, R. S., 1976. The Emotional Impact of Marital Separation. Journal of Social Issues, 32, pp. 135-146. Read More