Benefits of shared parenting legislation in Europe (Peter Tromp, October 2013)

 Benefits of shared care and residence for children, parents and society

by Peter Tromp MSc

Shared parenting legislation in Europe

October 4, 2013

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Presentation by Peter Tromp MSc [[1]], Secretary General of the Platform for European Fathers (PEF), at the conference on “Equal parenting legislation and shared residence rights after divorce and children’s psychological stability: Legal and psychological aspects.” held in the Parliamentary Building of the Republic of Lithuania (Seimas) in Vilnius on Friday, October 4, 2013.

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Lietuvos Respublikos Seimas

Tarptautinė konferencija „Lygiavertė tėvystė po skyrybų – vaikų psichologinio stabilumo pagrindas. Teisiniai ir psichologiniai aspektai“(nuotr. Dominykos Staniūnienės).<br />

1. Introduction

Good morning. First of all I would like to thank you for inviting me to this conference on shared and equal parenting rights in Lithuania.

My name is Peter Tromp. I am a child- and educational psychologist from the Netherlands representing the Platform for European Fathers (PEF) and the Dutch Father Knowledge Centre (VKC).

The Platform for European Fathers (PEF) was formally founded on June 27, 2011 to represent father organisations and fathers interests at the European policy levels in Brussels. Its founding meeting was in the buildings of the European Parliament and coincided with the conference organised in and by the European Parliament on the policy issue of a European minimum Paternity Leave of two weeks. PEF now has 24 member organisations from 15 different EU countries and is rapidly growing.

And the Dutch Father Knowledge Centre (Vader Kennis Centrum) was founded in 1988. It champions the cause of involved fatherhood and equal parenting and keeping both parents actively involved in children’s lives, also after divorce and separation.  It works with policy makers, scientists, campaign groups, lobbyists and reformers and aims to make knowledge and information available about the role, the contributions and the efforts men and fathers are making in children’s lives, particularly in raising and educating (their) children. Whether that is in the family – both before and after divorce – or in any of the other living environments where children grow up, like childcare and education.  The aim is to have these contributions and efforts of fathers and men in caring for and educating children better acknowledged and supported on the social policy level.

In my presentation of today I would like to speak to you about some of the benefits of post-divorce ‘shared parenting’ arrangements for children [2]. At the end of my presentation I would like to conclude with summary introductions to the situation of – and developments in – shared parenting in the European Union.

2. Some definition issues in post-divorce shared and equal parenting

Before elaborating on the benefits of post-divorce ‘shared parenting’ for children I would first have to spend some words on some of the different issues surrounding a definition of shared and equal parenting.

Joint legal custody, joint physical custody, shared parenting, equal parenting, shared residence, shared care, bi-location, co-parenting are all terms and concepts that are being used in the context of shared and equal parenting. They all have different meanings and different legal connotations.

When I am talking, however, of the benefits of shared and equal parenting I am referring to any post-divorce form of parenting in which both parents share in the day-to-day care and residence for the children in a mutually agreed post-divorce parenting plan or arrangement between the parents. This excludes forms of shared parenting that are only limited to joint legal custody without sharing in the day-to-day physical care for the children, as I consider these custody forms to be ‘shared parenting’ only in name and not in practice.

3. The benefits of post-divorce shared parenting

If we look at what available scientific research tells us what the best interests of children are with regard to parenting arrangements after divorce or separation, then the picture cannot be clearer. Comparing the outcomes for children growing up in shared parenting arrangements, having regular contact with and care from both parents after divorce or separation, with the outcomes for children growing up in single parent families in the sole care of only one of their parents, generally the mother, than children growing up in shared parenting do much better.

Better outcomes for children in shared parenting arrangements

From a meta-analysis on 33 underlying separation researches Robert Bauserman (American Psychological Association, 2002) concluded, that children growing up in a form of shared parenting with frequent contact with and care from both parents, had
– less behavioural – and emotional problems,
– exhibited higher levels of self-worth and self-confidence,
– were better capable of building and preserving social contacts and relations, both within and outside the family and
– performed better at school,
than children who had grown up in the sole care of only one of their parents.

Children growing up in shared parenting of both parents after divorce and separation did so much better than children growing up under sole care of only one of their parents, that shared parenting arrangements after separation by far proved to be the “second best” parenting arrangement for growing up children, providing them with a new post-divorce family situation that best approached the ideal situation of an intact family.

From a range of other researches it further became clear, that children growing up in shared parenting of both parents
– develop better,
– are more satisfied,
– prove to be better adapted and adjusted and
– have more self-confidence and self-worth
in comparison with children growing up in sole care of one of their parents (Nunan, 1980; Cowan, 1982; Pojman, 1982; Livingston, 1983; Noonan, 1984; Shiller, 1984.,1986; Handley, 1985; Wolchik, 1985; Bredefeld, 1985; Öberg & Öberg, 1987).

From a Harvard study on 517 separation families over a period of 4 years wide, children growing up under post-divorce shared parenting proved to be less depressed, exhibited less unadjusted behaviours, and achieved better school results than children growing up in post-divorce sole care. (Buchanan, MacCoby, Dornbusch, 1996.)

Also, boys growing up in shared parenting are found to have less emotional problems than boys growing up in sole care (Pojman 1982; Shiller 1986).

Adverse effects on children’s health and well-being of growing up fatherless in one-parent families

The available research clearly shows that children growing up in sole care – mainly fatherless and with their mothers in mother-headed families – do much worse than children growing up in shared parenting.

Children being raised by one parent are at a greater risk for many things as they grow up, including health risks such as poorly controlled diabetes and asthma. (Holmes, 2007)

A Swedish large scale population study on children’s health found that children growing up fatherless in single-parent families also have more depression complaints, use more and earlier drugs and alcohol (binge-drinking), get more accidents and more often commit suicide, than children growing up in the care and with the involvement of both parents. (Swedish population study into the consequences of single-parent families on children, Ringbäck Weitoft, Hjern, Haglund, Rosén, 2003).

And a recent Dutch study on the importance of fathers for their children after parental separation and divorce (ENOVA, 2008) found that in the Dutch province of Drenthe 62% of all children in need of special youth care and youth welfare provided by the Dutch state originated from single parent families headed by mothers.

Also a consistency has now been determined between growing up in fatherless single-parent families and the prevalence of children being diagnosed with attention deficit and hyperactivity disorder ADHD/ADD. Children in single parent families are at twice the risk of being ADHD-diagnosed and prescribed with the drug Ritalin than children from intact two-parent families (Strohschein, 2007).

Child abuse risk and “new boyfriend-” or stepparent-risk

Child abuse can happen in all types of families, but it happens most in single parent mother-headed families and in new “patchwork-families” with stepchildren.

Children, especially boys, growing up in single parent mother-headed families are at twice to 2,5 times the risk of child sexual abuse, physical abuse, emotional and mental abuse and neglect by either the mother herself or her “new friend”, the so-called “stepparent”. (Holmes, 2007; AMK, 1999, 2000, 2001)

Brought into a situation of social exclusion from the paternal half of their families by the present mother-only custody and care practises in family law and family courts, and with their fathers and paternal grandparents no longer involved or present in their lives, isolated children more often become victims of emotional, physical and sexual abuse or neglect by the mother or her new boyfriend. The devastating results of social and family court policies giving prevalence to mother-only custody and care for the divorce children involved in terms of rising child abuse cases and occurring family-drama’s are now reported on frequently in today’s journals and newspapers of all of our societies.

Effects on children of growing up fatherless in single parent families in the different age groups (O’Neill, 2002)

Children (0-12)

If we take a closer look at the effects of growing up fatherless on the different age groups children (0-12) growing up in fatherless single-parent families have a greater risk of a life in poverty, run more risk on physical, emotional and sexual abuse, more often become runaways from home, have a greater risk of becoming homeless youths, have more risk of health complaints and have more problems at school and in their social contacts with others (O’Neill, 2002).

Teenagers (12-18)

Teenagers growing up in fatherless single-parent families have a greater risk of teenage-pregnancy, to end up in (youth) crime, to smoke, to use alcohol and drugs, of playing truant, to be suspended, of becoming drop-outs and ending their school careers at an early age school, and of getting adaptation problems (O’Neill, 2002).

Young adults (18 onwards)

And young adults, having grown up in fatherless single-parent families, stand a greater risk of not having finished a proper vocational education, earning lower incomes, becoming jobless and in need of benefits, at risk of becoming homeless, or of getting involved in crime, of developing chronic emotional and mental-health problems, of developing general physical health complaints, and sooner have cohabiting relations, more often have extramarital children, only to end up in separation and divorce more often. (Meta-study “Experimenting in living, The fatherless family”, Civitas, O’Neill, 2002).

Parentification of children of divorce in single parent families

British teenage-girls who have grown up in sole care or single parent families reported that they get stressed out and overloaded by the separation problems of their parents, especially caused by the call on them by their caring parent, in 90% of the cases the mother, for support in the fight concerning the children, put up with the other parent after divorce and separation. (Bliss survey, 2005: Girls take strain or parents’ split)

In single parent families it is often not the child who is being taken care of by the parent, but – as “mother’s little helper” – the child becomes an instrumental friend and partner to the parent in distress taking care of the parent’s welfare instead, thus forcing children of divorce into early maturation and depriving them of their youth. This phenomenon is documented in the psychological literature as that of “parentification”.

Post-divorce father involvement in children’s lives makes all the difference

Another line of comparative research focuses on the different effects on children of growing up with either involved or not involved (i.e. excluded) non-residential fathers after parental separation and divorce.

Carlson (2006) found in her research “Family structure, father involvement and behavioural effects on adolescents” based on the 1996 and 2000 data cohorts of the USA National Longitudinal Youth Study on 2.733 10-14 year old adolescents living only with their mothers while their fathers were non-residential that the greater the involvement of fathers was in the lives of their adolescent children, the less behavioural problems the adolescents had in terms of aggression, antisocial behaviour, and negative feelings like anxiety, concern, depression and low self-esteem.

Shared parenting leads to fewer conflicts between the parents and between the child and its parents

It is frequently contested by antagonists to shared parenting that present shared or equal parenting arrangements are self-selective on the issue of pre-existing conflict levels between the separating parents as they are court-provided on a voluntary base of consensus and consent between the two divorcing parents involved.

It is therefore important to note in this context, that the better outcomes for children documented in the quoted research above have also been found in research that controlled for pre-existing levels of conflicts between the parents as a self-selecting factor for shared parenting.

Furthermore it is also frequently claimed and presumed by antagonists to post-divorce shared parenting arrangements that shared parenting is the cause of more post-divorce conflicts between the divorced parents as it raises the level of interactions and contacts between the two separated parents.

The meta-study conducted by Robert Bauserman (APA, 2002) however found that, in contrast with what is usually claimed, the number and levels of conflicts between the parents in shared parenting arrangements strongly diminished in comparison with the number of conflicts in situations of sole care with access arrangements. As a result these lower level of conflicts between the divorced parents in shared parenting arrangements contributes greatly to better child welfare and well being.

Moreover, not only do parents experience less mutual conflicts in shared parenting arrangements, but also children growing up in shared parenting appear to have fewer conflicts with their parents, than children growing up in sole care of one parent (Karp, 1982).

Less loyalty and allegiance conflicts

It is also frequently claimed by antagonists to shared parenting that children growing up in shared parenting arrangements with both parents do not have a place and home of their own (“Do not take away the children’s home”, it is claimed). Children in shared parenting arrangements are pictured as being constantly underway between houses and as being continuously exposed to conflicts of allegiance. Available research however confounds this picture. Children are more flexible – within reason of course – than we expect them to be. What is more important to them is keeping their relations with both their parents. (Steinman, 1981, Luepnitz, 1986, Shiller, 1986, Coller, 1988, Tornstam, 2000).

Children want it themselves

The last argument these antagonists make against shared parenting is that proponents of shared parenting only argue from the point of view of the parents and do not take the interests and wishes of children into consideration. From child-research in which children themselves are questioned on their preferences however, it becomes clear that children themselves also most prefer shared parenting and care from both their parents after separation (Fabricius, 2003). Children themselves most want to preserve and maintain their relations with both parents after divorce and separation. They consider having narrow links and bonds with both their parents as being important to them, while growing up in shared parenting leaves them more satisfied than growing up in sole care. (Kelly, 1993).

Also the national public, both women and men, is strongly in favour of shared parenting legislation by overwhelming majority (67-76%)

Representative public opinion surveys in several countries also have time and again proven the general public to be strongly in favour of co-parenting and alternating residence legislation after divorce by a two-thirds to three/quarters (i.e. 67% – 76% majority votings). And, contrary to what a noisy minority opposition of conservative gender feminists wants us all to believe, both modern women, young and old, as well as equality feminists proved to be even more strongly in favour of co-parenting and alternating residence legislation then the male population is the countries where representative opinion surveys were held. For more detailed information of the results of recent national representative public opinion surveys on these issues amongst the Dutch and the Belgian populations I refer to the Appendices A and B at the end of my presentation.

For that reason I am confident to predict that if an independent representative public opinion survey on these issues would also be organised in Lithuania, that the majority of the Lithuanian population, both women and men, would also support a family law reform based on a presumption of shared parenting and alternating residence parenting arrangements after divorce. The Platform for European Fathers offers its support in searching for the necessary funding for such a representative public opinion survey in Lithuania.

Breaking the cycle of broken families: Less divorces and separations

Finally, children of divorce growing up in single parent mother-headed families themselves are at a 3,5 times greater risk of separation and divorce later on in their lives (Spruijt, 2007), thus contributing to a self perpetuating and accelerating cycle of new broken families into the future.

Post-divorce shared parenting arrangements on the other hand however – instead of accelerating the pace of separation and divorce resulting into broken families in the future – also prove to be a valuable incentive for keeping two-parent families together when possible. The more shared parenting arrangements are to be implemented instead of mother-only custody and care after separation, the fewer parents are inclined to go for a divorce. (Brinig & Allen, 2000) This contributes directly to the best interest of the children involved, as all of the research so far has indicated that intact two-parent families are still the best and most ideal setting for children to grow up in and flourish into the jewel in society’s crown they deserve to be, instead of growing to be a liability and burden on the state.

To come to a first conclusion on the benefits of shared parenting for children, parents and society

Overseeing the presented and available social research objectively and rationally one is inclined to ask therefore why sole care and residency at present still is championed, and shared parenting still isn’t, as the preferred default and dominant presumption for post-divorce parenting arrangements in Western family law systems and family court practises?[3] In any other sphere of life such a degree of dysfunctionality would not be tolerated.

Seen from a point of view of the best interest of the child the current practice of sole care in family law should be considered as completely incomprehensible. If we really – and not in name only – give priority and weight to the best interests of children, then the available research provides us with a very clear message. This message is that:

  • after intact two-parent families, the outcomes for children in post-divorce shared parenting arrangements prove to be the next best situation for children to grow up in
  • post-divorce shared parenting arrangements are in the best interest of the child(ren), while sole care arrangements in single parent families are not
  • shared parenting and keeping both parents involved in children’s lives after parental separation and divorce seems to be the only way to go.

This very clear message does not only emerge from the available social research discussed. It is also communicated to us by the civil servants that are in charge of society’s institutions that have to deal on a daily basis with the effects of mother-only custody, care and residency practises and fatherlessness of children.

In April 2008 the British senior judge Mr. Justice Coleridge, responsible for family courts across South-West England, shortly after having passed judgement in the divorce of Sir Paul McCartney from Heather Mills, in a speech to British family lawyers launched a devastating attack on the fractured and fragmentising British society caused by family breakdown and divorce. In his speech he warned British government that family life in the fractured British society was now not only in disarray but in complete meltdown. Quoting from the Daily Mail this is what the senior judge said:

“Family life is in ‘meltdown’. Family breakdown is a “cancer” behind almost every evil affecting the country. Mr Justice Coleridge blames youth crime, child abuse, drug addiction and binge-drinking on the “meltdown” of relations between parents and children. He warns that the collapse of the family unit is a threat to the nation as bad as terrorism, crime, drugs or global warming.

The speech to family lawyers contains a fierce attack on the “neglect” of successive governments. The 58-year-old judge, who is married with three grown-up children, will say family breakdown is an epidemic affecting all levels of society from the Royal Family down. It is “on a scale, depth and breadth which few of us could have imagined even “a decade ago. It is a never-ending carnival of human misery. A ceaseless river of human distress. “I am not saying every broken family produces dysfunctional children but I am saying that almost every dysfunctional child is the product of a broken family.”

The judge, who is in charge of family courts across South-West England, will say he has a duty to speak out. He will call on the Government to put the family at the top of its agenda, alongside the economy and the war on terror – and make it “rather more important than taking oaths of allegiance”. His speech will say: “Families are the cells which make up the body of society. If the cells are unhealthy and undernourished, or at worse cancerous and growing haphazard and out of control, in the end the body succumbs. “In some of the more heavily populated urban areas, family life is quite frankly in meltdown or completely unrecognisable . . . it is on an epidemic scale. In some areas of the country family life in the old sense no longer exists.”

The judge condemns families with a mother and several absentee fathers. He says: “Single parents often do a fantastic job, but a great many, perhaps through no fault of their own, do not. “A large number of families now consist of children being brought up by mothers who have children by a number of different fathers, none of whom take any part in their lives or support or upbringing. “These are not isolated, oneoff cases. They are part of the stock-in-trade of the family courts.”

Judge Coleridge has spent the past eight years presiding over cases of divorce, children in care and family break-up.” (Source: Coleridge, Daily Mail, 4 April 2008)

And speaking to The Times of 21 August 2006, Rod Morgan, the chairman of the UK Youth Justice Board, said:

“What many young children lack are any sorts of boundaries being set to their behaviour so that literally they don’t know how to behave properly. There has not been a role model to explain things and to set boundaries. Most children we know like a reasonably structured existence and many don’t have it,” he said. He said that, without change, increasing numbers of young people would be drawn into the formal criminal justice system, a trend that has accelerated since Labour came to power. Between 35,000 and 40,000 young people are today being prosecuted in front of magistrates. Ten years ago many would have been punished informally outside the courts. “What magistrates are telling us is that many young people are coming before the youth courts who, in their judgment, don’t need to be [there]. … — the police are more and more being used as a disciplinary back-up force …

… Mr Morgan blames changes in demographics and the rise in the proportion of lone-parent families, particularly those headed by a woman, for the problems. “We know that the proportion of families where young parents — often mothers bringing up a child alone without the presence of a male role model and a father present on the scene, and without the support of an extended family — are having to cope with more and more challenging child behaviour in fairly deprived areas.” He said that some children were being raised in homes without even the most basic discipline being imposed, such as instructions about what time they should be up or back indoors. That behaviour presented serious problems in schools, where teachers’ confidence was undermined by the threat of being taken to court or by parents who have no regard for authority.” (Morgan, The Times, 21 August 2006)

4. Fracturing societies: the scope of the problem of broken families and fatherlessness

To give you a better idea of the scope and extent of the problem of broken families and fatherlessness in most countries of the European Union, allow me to first draw you a picture of the present situation of family breakdown in the Netherlands, as that is the country I come from and know the best.

An estimated total number of 60.000 new children – coming from both breaking marriages and breaking registered partnerships – are experiencing the divorce or separation of their parents in the Netherlands every year (every day 160 Dutch children are experiencing the divorce and separation of their parents).

From a total of 3.2 million children in the Netherlands between the ages of 0 and 18 years old, an estimated 1 million children have already experienced the divorce or separation of their parents. This has resulted in a situation where it is now estimated that 1/3 of all Dutch children are from broken families.

Most of these Dutch children of divorce and separation (an estimated 85% to 90%, i.e. 850.000 to 900.000 children) grow up in mother-only care and residency in single-parent mother-headed families with their fathers being non-resident and living elsewhere.

Measured one year from the time of divorce or separation an estimated 45% of the Dutch children of divorce and separation have lost all further contact with their fathers and are growing up completely fatherless in mother-headed single-parent-families or patchwork stepfamilies. Another 45% of the Dutch children of divorce and separation are estimated to grow up with their mother while their fathers are being marginalised and the children have only minimal, reduced and restricted contact and access arrangements with their fathers of one weekend every two weeks and some extra time during school holidays. (Cresskill, Griffith & Hekman, 1986)

This results in a situation in the Netherlands where an estimated 500.000 Dutch children of divorce and separation grow up completely fatherless (15% of all Dutch children), while another 500.000 Dutch children of divorce and separation grow up with marginalised fathers (another 15% of all Dutch children).

This situation of 30% of children left fatherless or with marginalized fathers after parental separation is prevalent in most European Union countries, including the new East European members. The incidence of fatherlessness tends to be still somewhat lower in Southern European countries and higher in Northern European countries.

For future trends we need to look at the USA, being at the forefront of the situation where Europe is also heading to. And in the USA now already 40% of all children are growing up completely fatherless (Source: Newsweek figures from January 2006).

A recent Dutch research study on the Parental Alienation Syndrome in the Netherlands (Kaplan, 2008) found PAS in the Netherlands to be a much bigger problem than was previously estimated. Some of the main conclusions of the Dutch study on Parental Alienation are:
• 72% of Dutch separated fathers believe PAS to be a problem.
• 64% of mothers believe PAS to be a problem
• According to father’s PAS is a severe problem in 21% of cases
• But according to mothers PAS is only a severe problem in 10% of cases.
• Overall Dutch fathers consider serious PAS twice as big a problem as Dutch mothers

5. The present status of shared parenting legislation after parental separation in Europe

Current judicial practice of mother care and custody is heavily influenced by John Bowlby and Anna Freud. In the 1950’s and 1960’s this view of mother’s role was revolutionary. The validity of this view has now been doubted and the judiciary has not kept pace with present day psychiatry.

The upshot of this is an over-reliance by judges on their own abilities to be able to award custody in terms of black and white (father versus mother) instead of shades of grey, i.e. shared parenting. The focus of the courts seem to be always in making the grandiose custody statement for children, instead of delivering care and residence arrangements in minute detail making shared parenting into a real possibility and delivering peace between the two adversarial parents by keeping both parents involved in children’s lives.

The present dominant European family legislation and family court practice regarding court ordered parenting arrangements after parental separation, is still a combination of joint legal custody legislation combined with sole physical custody. Courts are giving children to the sole care and residency of one parent, i.e. the custodial parent who is nearly always the mother, while the noncustodial parent is made nonresidential to the children and further put at a distance and excluded from his/her own children by:

– highly limited access or contact arrangements for noncustodial parents (normally limited to one weekend every two weeks, making serious parenting impossible)

– a deliberate policy of non-intervention by the courts when court-ordered access arrangements are broken by the custodial parent, usually the mother

– severely repressive legislation aimed at criminalizing noncustodial parents who do not accept being excluded from their children (stalking legislation, DV legislation, abduction legislation, restrictive injunction orders, etc.)

– fiscal and welfare policies and practices are geared to favor and support children, but only when living with one half of their separated families. This is often combined with extraction of money from the officially designated non-resident parent for support of the “family with children” which the state itself has imposed upon that family.

This choice of discriminative and repressive instruments implemented to achieve social policy goals seems to be common in all countries of the European Union.

More and more policy makers are seeing the writing on the wall. The ramifications include rising youth crime, an aging population and a lower birthrate. The well-documented disastrous effects that family law and family court policies have on children’s lives are becoming obvious, with ever increasing demands for larger budgets so that social services can meet the demand of broken families. The consequences of children growing up excluded from half of their families cannot be ignored.

The reaction of policy makers so far – and this can be observed as a generalized reaction to many policy situations today – is to make largely cosmetic adjustments to the present defective system which will take an inordinate time to have any effect (if ever), These types of policy already have a proven track record of failure. To make a mark on the problem, it is not enough to copy failed solutions from other jurisdictions.

6. Looking at the present trend in family law reform in EU countries (Europe)

We are now witnessing a distinctive shift in the different national family law systems of the countries in the European Union. Following the strong previous family law tradition of single care, residency and custody orders and practices favouring mothers during the second half of the twentieth century (as the only meaningful parent after divorce), There is a distinctive shift towards more equal and shared parenting arrangements and keeping both parents involved in the post-divorce care and residency arrangements for their children.

The first mainly symbolic steps of acknowledging the importance of both parents in children’s lives were based on Article 8 (Article on family life) of the European Convention of Human Rights (ECHR) (Council of Europe, 1950, 2003). As a result a post-divorce presumption of joint legal custody was put in effect in family law since the late nineties of last century (1996/1998) in several EU countries, including Germany, Belgium and the Netherlands.

The present general European trend within family law reform in European countries is, however, most definitely pointing strongly in the direction of moving away from sole physical custody and care legislation with court practices tending towards joint and equal physical custody and care legislation. Both trends recognize the importance of keeping both parents and extended families actively involved in children’s lives after parental separation.

Let me give you some brief summaries by country on the present state of Shared Parenting Legislation in the countries of the European Union:

a. Italy now has a mix of joint legal custody and elements of joint physical custody since a law change that came into effect on 16th March 2006.

b. France has a mix of joint legal custody and elements of joint physical custody (Residence Alternee) that came into effect in 2002. An estimated 17% of French children of divorce are now growing up in shared parenting and alternating residence arrangements.

c. Belgium on the initiative of its Socialist Party now has implemented presumptive 50/50 joint physical custody legislation (effective bi-location of the children) after parental separation in both its House of Commons and Senate which came into effect when it was formally published by the Belgian Federal Government on the 4th of September 2006. An estimated 35-45% of present Belgian divorces are now resulting in shared parenting and alternating residence arrangements. The new Belgian federal law on bi-location will be discussed at more length in my presentation below.

d. The Netherlands like Norway, Germany etc. since 1998 do have presumptive shared parental authority after divorce, but they only have a very weak “equal parenting and care” presumption in their family law, which in legal practice only allows for alternating residence when the mother consents.

In the Netherlands joint legal custody was implemented in family law by the Dutch Parliament in 1998 making joint legal custody the standard for post-divorce parental authority. And with the new Dutch Law on Continued Parenting after Separation (no. 30145), that went into effect on 1 January 2009, this was followed by the introduction in Dutch family law of the basic principle of the equality of both parents and the presumption of equal parenting (both before and after divorce or separation, and regardless of whether the parents were previously married or not). The new Dutch family law also introduced an incentive for separating parents to come up with a mutually agreed parenting plan during the separation and divorce proceedings.

Considering however the poor Dutch tradition on effective family law reform, the mainly decorative value of Dutch family court orders for fathers and the Dutch family court’s tradition of legislating from the bench, it still remains to be seen what this new Dutch law will bring in day-to-day family court practises for divorcing and separating parents and their children.

e. In Germany, a regional professional court intervention model called the Cochem model, based on principles of shared parenting, is gathering strength. This German Cochem court practice model will be discussed at more length in my presentation below. In this model parents are only allowed access to the family court for parental separation and divorce after they have themselves also filed a shared post-divorce parenting plan agreed by and between both of them.

The German federal minister of Justice has previously (February 2006) announced future family law reform in which “elements of the Cochem model of multi-disciplinary court orchestrated intervention” are to be integrated into the German family law. Which elements, however, are as of yet unknown. This family law reform at the federal level has, therefore, not yet materialized.

f. Spain introduced a new shared parenting law in mid-2005 which is regarded as wholly inadequate by Spanish family rights lobbyists. Government officials and professionals on their own initiative are attempting to introduce policies reintegrating alienated children with their alienated parents and there is a vigorous movement for change.

Spain also already has alternating residence legislation in three of its regions: Cataluna, Aragon and Valencia. The national government is now preparing a national law proposal on custodia compartida and alternating residence, but there are strong concerns that the presumption of alternating residence in it will be strongly compromised by gender discriminative domestic violence regulations which will only solicit and give rise to further gender wars and false accusations between the parents instead of peace.

g. CZECHIA: Finally there is a Czech High Court jurisprudence presumption on alternating residence that has not (yet) specifically resulted in alternating residence law reform.

h. The UK under the present conservative government has, as of yet, failed to legislate for promised shared parenting legislation in its new Children and Families Bill that is now still under debate in its House of Lords. No effective shared parenting laws are in existence. In a study of the British Law Commission’s research papers it was found that court-ordered shared parenting was commonly practiced in the south part of England in the second half of the last century until it was eliminated by the Children Act 1989 (Whiston, 2009a). Also some judicially-motivated efforts to introduce norms of shared parenting do exist, in spite of the family-hostile parameters of the present law and fiscal framework.

i. Luxembourg is also said to have introduced post-divorce joint physical custody legislation.

Other jurisdictions

Australia passed a Shared Parenting Bill in the Senate in 2006 of the window dressing sort. Australia in fact is a good example of the sort of jurisdiction that repeatedly passing pretend laws that are having no real effects on keeping both parents involved in children’s lives after parental separation. And each time it is claimed that the present law proposal will be better than the last, while children of separation continue to grow up in a family-hostile environment. The same pattern can be observed in EU-countries like the UK, the Netherlands and Spain.

– In the USA several states have implemented shared parenting legislation.

7. Belgian law on alternating residence of 2006

Since September 2006 the Belgian federal law on “bi-location” or “alternating residence” came into effect after having passed both houses in the Belgian federal parliament. [4]This new law additionally introduced a presumption of joint physical custody, care and residency as the norm or preferred post-divorce parenting arrangement to be ordered by the Belgian family courts. Furthermore immediate unilateral court-access for either of the divorced or separated parents in requesting for additional reinforcement orders if needed was introduced.

Contrary to common belief the Belgian family law reform of September 2006 however did not introduce a 50/50 joint physical care and residency arrangement as the fixed end-result for all divorcing or separating Belgian parents. Instead it introduced a presumption of dual location or shared residency which by law should be taken into serious consideration and thorough investigation with priority in each individual case by the Belgian family courts and judges on the request of either one of the divorcing parents individually and separately.

So it was introduced in the Belgian alternating residence law of 2006 that when only one of the separating parent parties requests the Belgian court for an alternating or shared residency and care order in the divorce and custody proceedings, the law puts the Belgian family courts and judges under the obligation to seriously investigate alternating and shared residence of the children with both parents first and foremost as leading in the court-orders to be subsequently imposed in the divorce and separation proceedings, even when the other parent party did not consent to the alternating residence request. In effect the wishes with regard to the post-divorce residency and care arrangements of either parent parties involved were thus again acknowledged and reinstated at the core of Belgian family law and family court proceedings regarding physical custody, residency and care.

Furthermore Belgian family court judges were also endowed by the law with the obligation to explicitly specify in writing their motives for decisions and provisions with regard to the imposed post-divorce residence and care arrangements if they were to deviate from the presumptive and preferred bi-location or alternating residence and care arrangement in their court-orders.

These new Belgian law provisions have put shared parenting at the forefront of the Belgian family courts decision-making regarding the care, access and residency of the children involved, while the need and obligation imposed by law on the Belgian family courts and judges to extensively specify in writing in their imposed court-orders as to why a shared parenting or bi-location order was not imposed, opens the possibility for appeal of the courts decisions and motivations.

A further additional but underestimated new element of the Belgian family law reform also is that divorce and custody cases in the Belgian Court are by law kept open and are never closed until the children are mature. At the same time the Belgian law introduction of immediate or priority access to the courts and judges on the request of either one of the parties one-sidedly. This can be activated unilaterally and individually – without the need of being represented by a lawyer at the court-session requested for – for additional reinforcement orders of the court when the court-ordered parenting arrangements were not sufficiently complied with by the other parent and when there were complaints about the other parent with regard to abiding by the specific parenting arrangements laid down by the judge in the original case residency, care and access order(s) given.

Abstract

All across Europe the child custody debate has moved to the top of the political agenda. The battle lines are essentially the stark choice between mother-only-custody of the child versus shared parenting where both parents are participants in child custody and care. Much is at stake – not just for gender feminists, who support the former, and fathers and equality feminists, who support the latter, but also for children and whether the balanced, healthy society we all seek will become a reality. This is a clash that must be won. It cannot, as American author Warren Farrell famously said, be an undeclared war won at a battlefield where only one side turned up. The question today is whether children in the post divorce scenario grow up to be a liability and burden on the state, or a jewel in society’s crown ? After 30 years of feigning deafness, politicians across Europe are acknowledging the contributions and efforts fathers should be allowed to make to young children if they are ever to be properly ‘socialised’.” This cannot be done under the present regime of mother-only-custody still to be found in most European countries.

This presentation will address the psychological and emotional needs of children but it will also mention the concrete changes underway. Fathers, who for too long were excluded from the social policy level and who were denied any input in shaping policy, are today making small inroads. For instance, there are developments in shared parenting to be found in EU countries like Belgium, France, Italy, Spain, Czechia and to a degree in Dutch and German family law which I will also cover in this paper. Slowly, ‘outcomes’ for so long championed by fathers’ organisations, are being adopted as the criterion rather than ideologically driven dogma. It was just 10 years ago that the consensus was that it was unnecessary for a father to have any role after birth and fathers were increasingly seen as superfluous to children’s needs. Slowly, as society has unravelled, it has been recognised that children in fatherless families run greater mortality and morbidity risks. That their ‘quality of life’ is poor, their ‘live chances’ negligible. Without fathers present they become victims of physical abuse, emotional and sexual abuse, have poor health, poor education, become drink and drug dependent, homeless and jailed.

References:

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  • Pojman, E. (1982) Emotional adjustment of boys in sole custody and joint custody compared with adjustment of boys in happy and unhappy marriages. Los Angeles: California Graduate Institute, Doctoral dissertation.
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  • Rudolph, J. (2007) Du bist mein Kind; Die Cochemer Praxis, Wege zu einem menschlicheren Familienrecht (You are my child; The Cochem practise, inroads to a more human family law), Berlin, 2007
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________________________________
Peter Tromp MSc, Child and educational psychologist, Platform for European Fathers (PEF), Brussels and Father Knowledge Centre Netherlands, Utrecht

Appendix A: Dutch public opinion survey on the preference of the Dutch population for shared parenting legislation

 

Dutch, at 71% go ‘shared parenting mad’

Peter Tromp MSc and Robert Whiston FRSA, Dutch Father Knowledge Centre Press Release, September 14, 2012

The Dutch term for shared parenting is ‘verblijfsco-ouderschap’ (or co-residential parenting) which broadly translates as shared or co-parenting.

In a national representative opinion survey with the Dutch public 71% said they agreed with co-parenting after divorce as the legal presumption for postdivorce custody, residence and care arrangements. And, despite minority feminist protests against the concept of shared or co-parenting, Dutch women even more than men favoured the newer regime – 76% of the Dutch women as opposed to 67% of the Dutch men supported shared parenting legislation to be implemented.

One of the many surprising results found that women , at 52%, were significantly more in favour than men (at 39%), in believing that ‘residential co-parenting’ after a divorce or separation in principle should start immediately after childbirth, i.e. is not child-age-restricted or limited to older children.

The poll, undertaken in Sept 2012 by the opinion research firm IPSOS Synovate (“The Political Barometer“), in conjunction with the Dutch based ‘Father Knowledge Centre’ asked a series of inter-related questions probing the preferences and opinions of the Dutch general public.

The main results of opinion poll commissioned by IPSOS Synovate and the Father Knowledge Centre found that a two-thirds majority (7 out of 10) of the Dutch think that co-parenting is the best solution after a divorce. In addition:

  • Almost half (45%) of the Dutch think that co-parenting (shared care and accommodation) after a separation should be possible – even immediately after birth.
  • 8 out of 10 (80%) of respondents believes that schools and agencies dealing with their children should keep both parents equally well-informed and involved in the development of their child after divorce or separation.
  • Slightly more than half (53%) believed that parental and access arrangements which have been ordered by the court should be complied with.

 

Sample size

The survey was conducted on-line by IPSOS Synovate on behalf of the Father Knowledge Centre among a representative sample of 1,243 Dutch people aged 18 years and older. The results are subsequently weighted by age, gender, education and region, so that the group surveyed a good reflection of Dutch society.

Further analysis

This particular survey is significant in that it generates information not only about the respondee’s gender (male / female), and age, but also their intended voting preferences. [1]

There are far more Political Parties in Holland than we are accustomed to in the UK and with apparently similar names it would be helpful to list them for the reader.

Political Parties in the Netherlands
SP (Dutch Socialists) PVV (Dutch Social Conservatives)
D66 (Dutch Liberal Democrats) VVD (Dutch Liberal Conservatives – now in government)
CDA (Dutch Christian Democrats) PvdA (Dutch Social Democrats – now in government [Labour] )

Some of the disaggregated results based on gender (male / female), region and age, etc, are shown below:

  • Co-parenting was chosen as the best solution after a divorce by 74% of respondents who had a secondary education and 75% by those with a higher education. The figure in support of co-parenting among less well-educated Dutch respondents was lower at 64%.
  • Dutch women have a significantly stronger preference for co-parenting after divorce than men (Women: 76% Men: 67%).
  • The majority of Dutch women (52%) believed that residential co-parenting after divorce or separation in principle could start immediately after childbirth, i.e. is not child-age-bound and limited to older children. A significant minority of men (not necessarily fathers) agreed, i.e. women: 52%, men: 39%).

Small generational divide

  • The older Dutch generation of (those aged over 50) were significantly more in favour, at 76%, of residential co-parenting after divorce and separation as the best post-separation parenting solution, than the middle-aged generation of the 35 and 49 year olds, at 66%.
  • It was also found among the Dutch survey that the older generation (aged 50 + and by a margin of 84%) were significantly more likely to favour schools and institutions informing both parents equally after separation and be involved in the development of their child. The younger generation, i.e. those aged 18 to 34 supported this slightly less, at 75%).

Political analysis

  1. Respondents belonging to the Dutch Labour Party (PvdA) and the Social Liberal Party (D66), strongly supported shared and co-parenting after divorce, at 79% and 80% respectively.
  2. The Christian Democratic (CDA) and the right-wing PVV party preferred the shared /co parenting option by over two-thirds, at 66% and 69% respectively.
  3. Dutch voters who at the last Dutch national elections of September 12th, 2012 preferred to vote for Dutch Social Democratic Party (PvdA), which is now in the government coalition supported co-parenting in 79% of cases.
  4. Among D66 voters, the Dutch Liberal Democratic Party, 80% of respondees found residential co-parenting significantly more often the best solution for parenting arrangements after divorce or separation,
  5. The Dutch who preferred to vote for the Dutch Christian Democratic Party (CDA), in 66% of instances preferred co-parenting for custody arrangements after divorce.
  6. Those who voted for the Dutch Social Conservative Party (PVV), at the last Dutch national elections of Sept 12th 2012 expressed a 69% preference in favour of shared/co-parenting for custody arrangements after divorce.

The implications for all British politicians and electoral success is clear.

END

 

References:

A similar study has previously taken place in Belgium and was published in the largest French-speaking Belgian newspaper ‘Le Soir’ on 25 June 2012:

See the original Le Soir article about the Belgian research:

  • Divorce: la garde a la cote alternee (Le Soir Belge – DORZEE, HUGUES – Page 7 – Lundi 25 June 2012).
  • Une majorité the Belges preconise la garde alternee (Le Soir Belge – Page 1 – Lundi 25 June 2012).

Dutch translation of the Le Soir article:

And in collaboration with the partner organizations of the Father Knowledge Centre within the Platform for European Fathers (PEF), these surveys also in other European countries still take place.

END

Footnotes:


[1] The breakdown was by a). gender (male / female), b). region, c). age, d). training / education and e). political voting preference as at the last Dutch national elections of Sept 12th  2012.

Appendix B: Belgian public opinion survey on the preference of the Belgian population for shared parenting legislation

 

The majority of Belgians (69,5%) favor their shared parenting law

Source: Belgium – Le Soir – Page 1 – Translated from French to English by Pieter Tromp – Monday, June 25, 2012

A majority of Belgians (69,5%) favors joint physical care and residence of the children after divorce

According to a poll conducted for the Francophone Belgian family and parenting magazine Filiatio, seven out of ten Belgians are in favor of equal accommodation or bilocation of the child between the homes of divorced parents. This type of care is far preferred above sole care arrangements for the children with one of the parents, combined with a “fortnightly weekend of access with the other parent ” (15.2%) or the “5/9″ – parenting arrangement with the children staying five days with one of the parents, and nine days with the other parent ( 5.2%).

A clear difference was observed between the Belgian language communities: with joint physical care, residence and custody being more popular with the Flemish (81.2%) than with the Francophone (54.5%) community. “The socio-economic factor must play a role”, analyses Prof. Yves-Henri Leleu, a specialist in family law at the University of Liège (ULg): “Accommodation in alternating residence arrangements costs is more expensive: it takes two homes, two cars, etc.. Also the “northern (Flemish) counties” are more emancipated. Finally, there is certainly more family support services made available (crèches, nurseries …) on the Flemish side. “

Divorce: Shared parenting is popular in Belgium

Source: Belgium – Le Soir – DORZEE, HUGHES – Page 7 – Translated from French by Pieter Tromp – Monday, June 25, 2012

Families – A survey by « Filiatio » confirms the attractiveness for equally shared physical custody, care and residence

A couple separates: Who will take care of the children? Mom or Dad, or both? The vast majority of Belgians favor alternating residence and shared parenting after the divorce.

According to a survey conducted by AEGIS / Deep Blue, on behalf of the magazine Filiatio (1), nearly seven out of ten respondents (69, 5%) favor an egalitarian accommodation of the children with both their parents after divorce.

This type of care is far preferred above sole care arrangements for the children with one of the parents, combined with a “fortnightly weekend of access with the other parent” (15.2%) or the “5/9″ – parenting arrangement with the children staying five days with one of the parents, and nine days with the other parent (5.2%).

However, there is a clear difference between the north / the south: this mode of “custody” is praised more by the Flemish (81.2%) community than by the Francophones (54.5%). The reasons? “The socio-economic factor must play a role”, analyses Prof. Yves-Henri Leleu, a specialist in family law at the University of Liège (ULg): “Accommodation in alternating residence arrangements costs is more expensive: it takes two homes, two cars, etc.. Also the “northern (Flemish) countries” are more emancipated. Finally, there are certainly also more family support services made available (crèches, nurseries …) on the Flemish side.”

A view shared by the authors of the survey: “There is also greater professional support in family law in Flanders. And, conversely, greater resistance on the French side,” says Céline Lefevre from the magazine Filiatio.

“Avoiding Conflicts”
Either way, the results of this survey are surprising. They confirm the evolution of mentalities in Belgium and abroad (France, Spain, Italy …). This evolution results from a new legislative framework – the Belgian Bilocation Act of September 14, 2006 – in which judges are encouraged to review egalitarian care, residence and housing arrangements of the children with both parents with “priority”. Unless it is “manifestly contrary to the interests of the child.”

In order to decide, the judge takes into account different criteria (geographical distance, “the serious unavailability” of a parent, the age of the child, expressed non-interest in caring for the children or neglect of the children …). “The law does not require or prescribe a generalization of the bilocation formula, but focuses on advocating an agreement and avoiding disputes. If neither of the parents approves for joint physical custody, the judge will not impose it automatically,” says Professor Leleu.

But the trend is there: the “equally shared care and residence” has gradually become accepted and entering the customs. While it has both its advantages (maintaining bonds with both parents equally; giving free time to both parents …) and its disadvantages (instability and displacement, an obligation to “double” necessary accommodation facilities …), as is shown in a study by the University of Liège (Casman, 2010).

In addition, ‘part time’ parents also seem to have a typical profile: 30-40 years, higher educated, steady jobs with employers, having flexible working schedules, etc.

And in practice?
We do not have data to assess objectively the part of court decisions in favor of this type of care.

“In general”, Céline Lefevre adds, ”it seems that the egalitarian accommodation or bilocation is under-represented in court decisions. So there would be a discrepancy between what Belgian people think and what is applied by judges.”

“Each case is specific”, tempers Professor Leleu. “This type of accommodation is not applicable all the time. In some cases, it is counter-indicated (geographical distance from parents, tensions between the parents …). In addition, it requires a lot of dialogue between the former spouses (medical follow-up, sports activities …)”

The survey Filiatio has conducted also considered other aspects of family life (child report, the role of law, court delays …), including mediation. Again the conclusion is clear: more than six out of ten Belgians (64%) are in favor of “imposing obligatory mediation to separating parents.”

(1) This survey was conducted by telephone in March 2012 based on a representative sample of 500 people aged 18-70 years with a margin of error of 4.4%. (www.filiatio.be)

69.5%
This is the percentage of Belgians in favor of “equally shared physical care and residence”. With strong differences between the Flemish (81.2%) and the French (54.5%) communities in Belgium.

Original articles in French:


[1] Peter Tromp MSc is a child and educational psychologist, secretary general of the Platform for European Fathers (PEF) and president of the Dutch Father Knowledge Centre (VKC – Vader Kennis Centrum). He can be contacted at Jacob Cabeliaustraat 17; 3554 VH Utrecht; Netherlands; T. 0031. 30.238 3636; M. 0031.6245.06249; Skype: Peterpan17; E. secretary@europeanfathers.eu; and tromp@casema.nl; I. www.europeanfathers.eu ; www.vaderkenniscentrum.nl

[2] Because children are the future of any society, I will take in my presentation the perspective of the children involved in divorce in documenting some of the effects of divorce. This does not mean however that divorces do not also have profound effects on the quality of life of the divorcing adults involved. They do. But – although in most of the psychological literature divorce is acknowledged as one of the main life course events and possible trauma’s – not much research is readily available yet on the exact traumatising effects of parental alienation and exclusion resulting from the destructive sole care and residence practises of Western family law systems and family court practises on the divorcing adult parents. One recent Dutch study documented however that divorced parents count for 48% more of company’s and society’s sick leave costs in the workspace (Kunst a.o., 2007). Also a relationship between divorce and suicide has been documented. This indicates that the costs of divorce for society and companies are still far from being documented extensively and can be expected to be tremendous, both for children and the adults involved.

[3] It is not within the scope of this presentation to further elaborate on the parochial, subjective and irrational reasons why Western family law systems and family court practises instead still opt for single parent mother-only custody, care and residency as the preferred default and dominant presumption for post-divorce parenting arrangements. Instead I refer to the excellent presentations that were simultaneously held on this subject at the Drama conference by Robert Whiston FRSA (“Law is parochial”) and Peter D. Zohrab LLB, BA, BA(Hons), („The Move to Female Subjectivity as the Standard for Law and Policy“), to further elaborate on the critical issue of why subjective, irrational and parochial choices at present are leading in Western family law systems and family justice practises.

[4] Belgium already had a presumption of joint legal custody in its family law since the nineties of the last century.

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About Pieter Tromp MSc (PEF - president)

Pieter Tromp MSc is president of the European NGO 'Platform for European Fathers' (PEF) and chairman of the Dutch NGO Father Knowledge Centre (Vader Kennis Centrum) Emailaddress: secretary@europeanfathers.eu
This entry was posted in 2013, Conference, Custody, English, Equal Parenting, Guardianship, LITHUANIAN ASSOCIATION AGAINST PARENTAL ALIENATION (APTA), PEF, PEF in the Media, Peter Tromp, Peter Tromp (VKC Netherlands Primary founding father and Secretary of PEF), Platform for European Fathers, Platform voor Europese Vaders, Secretary PEF, Shared Parenting, Shared residence, Vader Kennis Centrum, Vader Kennis Centrum (NL). Bookmark the permalink.

2 Responses to Benefits of shared parenting legislation in Europe (Peter Tromp, October 2013)

  1. Pingback: Lithuanian International Conference on “Equally shared parenting and residence after divorce – children’s psychological stability. Legal and psychological aspects.” (Seimas, Vilnius, Lithuania, October 4th, 2013) | Platform for Eur

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