by Ruth Weston
Reprinted with permission of Australian Institute of Family Studies
Ruth Weston:
AIFS Research Fellow, reports on the practical meaning of child-related orders
and discusses differences in the views of parents who stated that they had or did not have such orders.
Introduction
Custody Orders in Practice
Satisfaction With Child-related Orders
Specific Satisfactions and Sense of Well-being
Perceived Effects of Divorce on Children
Contribution of Child-related Laws to Current Decision Making
Conclusion
References
Introduction
The following discussion is based on reports of 240 custodial mothers and 153 non-custodial fathers who participated in the Institute's Parents and Children After Marriage Breakdown (PCMB) survey, undertaken in 1987, five to eight years after parents had separated (Funder 1989). The PCMB survey represented a follow-up of the Economic Consequences of Marriage Breakdown (ECMB) survey which was conducted in 1984 (McDonald 1986). Prior to their separation, the parents in the PCMB survey had been married for 5 to 14 years and had two children of this marriage, whose average ages were 14 and 12 years at the time of this second survey.
Respondents were asked whether they had court orders relating to their children other than orders for their maintenance. This includes custody, access or guardianship orders, and may represent consent orders (which did not involve a court-imposed solution). Throughout this discussion the concept, 'order', includes consent orders.
The existence of child-related orders does not necessarily imply that parents who have separated disagreed about arrangements for their children. Consent orders simply make agreed upon arrangements legally binding. They can be sought by parents purely as a safeguard, or they may result from 'door of the court' negotiations (where parents come to an agreement in order to avoid court intervention). Orders made after a contested hearing, on the other hand, suggest that parents were unable to agree about arrangements for their children, and could not resolve their disputes without the imposition of a judge's determination.
Whatever the history of orders, some parents may become accustomed to them; others may resent the restrictions they impose, and feel that their children have been adversely affected as a result of repercussions of the divorce. Orders which were considered appropriate at one time may seem inappropriate to one or both parents later on, owing to changing circumstances or priorities. Some parents may adhere rigidly to the orders; others may take little account of them.
Most divorced people do not have orders. In the PCMB study, 39 per cent of custodial mothers and 37 per cent of non-custodial fathers reported that they had child-related orders. Most (87 per cent) indicated that these orders had been made prior to the first survey. We do not know the extent to which orders reported were seen as consent orders as opposed to those made after a contested hearing.
Further, parents were sometimes unclear about legal matters concerning their children, including the existence or otherwise of child-related orders (Weston and Harrison 1989). The important matter for the following discussion is not the accuracy of their perceptions, but the relationship between beliefs about the existence or otherwise of these orders and other views held by the parents.
Of those reporting orders, 42 per cent of the women and 48 per cent of the men indicated that differences existed between arrangements formulated in orders and those which occur in practice, and almost all of these people referred to changes in access. Most of the reported changes covered decreases in the frequency or length of access visits. Custodial mothers often held the fathers responsible for these changes:
"Visiting was to be regular - weekly - but he calls when he feels like it and now this never happens."
"He doesn't seem to want access."
"He doesn't see the children and is unaware of the progress in the children's lives."
"In the order, he asked for fortnightly and holiday access, but he has reduced this to monthly and no holiday access."
A few custodial mothers attributed the decrease in access visits to their children's wishes, or to changing circumstances. For instance, the children were older and so the times specified for visits were no longer considered appropriate, or the non-custodial father had moved interstate or overseas. One custodial mother acknowledged that she limited access:
"Seeing that I am the custodial parent, I don't always think it is fitting for him to have the children - seeing as I have to make the decisions and he doesn't support them much."
Most non-custodial fathers did not provide reasons for any decreases in access visits, but some referred to the wishes of the various parties involved and others mentioned changing circumstances:
"I have no access visits - I don't even know where the children are."
"The children don't visit regularly now - just when it suits them. However, I'm hoping they will visit more often when I get their room finished."
"Joint custody and access arrangements are not worth the paper they're printed on. They are unenforceable. I'm supposed to have joint custody, and access is reserved. When you go to counsellors or magistrates they don't help, and the court just harassed me. I'm not allowed to see the girls most of the time - only about once a year instead of once a fortnight." Back to present study
"I'm only allowed to have access between 10am and 4pm on Sundays. I had to be there on that day. This, of course, has ceased."
"It is supposed to be every second weekend, but when I ring there are always excuses." Back to Present Study.
Although most of the comments indicated that access visits had become less frequent, some respondents, particularly non-custodial fathers, reported that these visits had increased or that arrangements had become more flexible. Such flexibility may, of course, imply an increase or decrease in access visits. Of the following comments, the first was made by a custodial mother, and the others by non-custodial fathers:
"Before there were fixed, non-flexible arrangements and also a restraining order. Now he is no threat, so he could come to the house if he ever wanted to."
"We have more freedom - it is within the bounds of reality now. It used to be every second weekend and half the school holidays, but the kids are now free to visit me when they like."
"We do not follow the original order - we make arrangements to suit both of us now."
"The children stay more often - there is much greater access."
"The times stipulated have been disregarded. The children come as they wish".
In short, just under half the parents reported differences between the arrangements set out in orders and those which take place in practice. Most explanations of differences indicated decreases in access visits, but some suggested greater flexibility of access arrangements. In the earlier (ECMB) study, it was noted that children often become progressively less relevant in the lives of their fathers as the men adjust to their marriage breakdown (Weston 1986). Under these circumstances, decreases in access visits would be likely to occur. However, other reasons for decreases suggested by the respondents were interference by the custodial mother and changes in the interests of the children as they have grown older.
As mentioned earlier, most of the orders had been made prior to the ECMB study, so parents had had considerable time to adjust to them or to make changes in arrangements to suit their current circumstances, regardless of their legal positions. For some parents, orders and any disputes which instigated them may have paled into insignificance as they got on with their lives. For some, orders may continue to represent a means of protecting their children's interests, but for others they may represent a source of continuing frustration. We cannot simply assume that time heals.
Parents rated on nine-point scales the extent to which they were satisfied or dissatisfied with current custody, guardianship or access orders. All but one of these parents had custody orders at least. These ratings ranged from (1) 'terrible' to (9) 'delighted' with the mid-point (5) representing 'mixed feelings'.
In surveys of satisfaction and sense of well-being, people tend to give positive (satisfied) ratings for most issues, but particularly for family and friendships. Thus low ratings tend to be more 'suggestive' than high ratings. Nevertheless there are some issues, such as government and public policy concerns, which typically elicit discontent (Headey and Wearing 1981).
On average, custodial mothers expressed moderately high satisfaction with their current orders (rating = 6.6), but non-custodial fathers seemed discontented about this issue (rating = 4.7). Figure 1 shows the patterns of satisfaction ratings concerning current child-related orders for custodial mothers and non- custodial fathers. Seventy-six per cent of the custodial mothers appeared to be highly or moderately satisfied with their orders, but only 40 per cent of non-custodial fathers evaluated such orders positively. In fact, 38 per cent of this group expressed dissatisfaction - a pattern which is quite divergent from the usual trends in surveys as noted above.
The non-custodial fathers who indicated their feelings about child-related court orders did not appear to be a generally dissatisfied group. On issues such as living standards, paid jobs, family income, personal health, and 'life as a whole', two-thirds to three-quarters indicated moderate or high satisfaction and no more than 20 per cent expressed dissatisfaction. In other words, their negative evaluations of current child-related orders did not seem to derive simply from feelings of pervasive discontent. However, non-custodial fathers with orders seemed less happy than other respondents with certain child-related issues.
Figure 2 shows the average satisfaction ratings (means) for life as a whole and for various child-related issues. Here the men and women are sub-divided into those with and without current custody orders.
All groups seemed satisfied with life as a whole, and for all but one of the remaining issues, custodial mothers with and without orders expressed high satisfaction. The exception concerned their views about their former husbands as parents: they seemed particularly unhappy about this matter. In surveys of this type, few issues tend to be given such low ratings. In fact, in a sample of married (farmer) couples undertaken by the Institute (Weston 1989), both men and women expressed high satisfaction with their spouses as parents.
In general, fathers tended to express lower satisfaction than mothers, but they were happier than the women with their former spouses as parents. Compared with the non-custodial fathers without child-related orders, their counterparts with orders were significantly less satisfied with their children's progress and overall well-being, with their ability to communicate with their children and with their former wives as parents.
Of course, children may also suffer if custodial parents express their unhappiness about the behaviour of the other parent. Custodial mothers were typically dissatisfied with the parenting behaviour of their former husbands, and we can assume that some of these people would communicate their dissatisfaction to the children. A common complaint of custodial mothers concerns the failure of non-custodial fathers to see their children regularly.
Comparisons were also made between those with and without orders concerning views about the effects of the divorce upon the children (Figure 3). Fathers were more inclined than mothers to argue that their children were 'worse off' than otherwise because of the divorce, but this difference between custodial and non-custodial groups was accentuated for those with orders. In fact, just over half the men with orders felt that their children were worse off as a result of the divorce.
Conversely, although custodial mothers were inclined to argue that their children were better off, this trend was more marked for those with, rather than without, orders (72 per cent versus 59 per cent). In other words, the existence of orders was linked with a favourable impression of the effects of the divorce on the children for custodial mothers and an unfavourable or neutral impression for non- custodial fathers.
Although differences emerged in the views of those with and without orders, the overall importance of the laws of custody, guardianship and access in shaping parents' decisions about their children several years after separation should not be overstated. Less than 10 per cent of custodial mothers with and without orders attributed some importance to the laws. Some of these women felt that the laws provided a protective role, although one woman expressed doubts about their effectiveness:
"The laws are very important because they prevent my former husband from getting custody."
"To me, even now, it is important to have that legal basis for the arrangements."
"The laws make me feel safer and less frightened of my former husband trying to take the children from me."
"They are very important to me now. The children are mine and I make the decisions for their future."
"They have made him more reliable."
"When there is a decision to make, I know I can legally make it without consulting him."
"The laws provide a crutch to lean on. It's nice to know that they are there if the situation arose to need them."
"I'm paranoid about him taking my children. The laws would support me probably, but I'm afraid that he might flout the law and just come and take them. He has disappeared and I don't know where he is. I'm paranoid about their safety."
However, the law was not always seen as playing a protective role. A few women were concerned that their former husbands may exercise their legal rights:
"I get worried he might bring the law into play."
"It would worry me if he exercised his rights, but he does not."
This concern may have been more widespread if more custodial mothers and non-custodial fathers understood some of the rights normally held by non-custodial parents. Custody and guardianship responsibilities may be assumed to apply to both parents, unless there is an order to the contrary, and in this case, sole custody and joint guardianship is the most likely legal situation. Yet respondents commonly assumed that the parent living with the child had sole custody and sole guardianship, with more custodial mothers than non-custodial fathers believing that these situations applied to them (Weston and Harrison 1989). Thus, had they understood their rights, the law may have played a greater role for the following non-custodial fathers who stated that no orders existed:
"When I try to have a say in how the children should be brought up, I'm told to mind my own business because I'm not their legal guardian."
"The laws are used to effectively prevent me from making any decisions".
Around 13 per cent of non-custodial fathers without orders and about 18 per cent with orders attributed some current significance to the laws of custody, guardianship or access. Some men saw the law as a controlling factor, which played either a protective or intrusive role:
"The laws rule the roost."
"They are still very important in guaranteeing access."
"They serve as a reference point, quelling any momentary temptation to be nasty through the children."
"They are very important because there is nothing I can change."
"I am bound by the laws. If I pick up the kids and don't return them, she can put me in jail."
"The law is fairly well defined and I have to obey it."
"The law stinks. If I don't have the children back in time, there is all hell to pay. If I don't pick them up on that day, after giving plenty of notice, she would deny later access."
Five to eight years after separation, most respondents reported that they did not have orders, and irrespective of whether or not they believed orders existed, most said that the law played little if any part in decisions made about the children. It may have played a more important role had more non-custodial fathers understood their rights.
Although existing child-related orders had normally been made early on in the separation, and although some aspects of these orders were often no longer observed, time had not always healed the frustrations experienced by non-custodial fathers who reported the existence of orders. Custodial mothers with orders were inclined to be happy with them, but non-custodial fathers reporting orders indicated dissatisfaction or mixed feelings. These men were also the least satisfied of all groups with the child-related issues examined. In fact, they were the most likely to state that their children were in a worse position as a result of the divorce. It is important to remember, however, that these men represent a minority, but nonetheless important, group; most divorced people do not have orders.
Irrespective of the reported existence or otherwise of orders, custodial mothers were inclined to express high satisfaction with the child-related issues examined with one exception; they were not at all impressed with their former husbands as parents. Decreases in access visits were a common complaint of women.
Back to present study
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Evaluation Study, Report No. 6, Australian Institute of Family Studies, Melbourne.
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McDonald, P (ed) Settling Up: Property and Income Distribution on Divorce in
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Weston, R (1986) 'Money isn't everything', in P McDonald, (ed), Settling Up: Property
and Income Distribution on Divorce in Australia, Australian Institute of Family Studies and
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Weston, R (1986) 'Down on the farm', Family Matters, Australian Institute of Family
Studies, Melbourne, No. 24, pp. 12-17, August.
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responsibilities towards their children', Paper delivered at the Third Australian Family Research
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