Patrick Parkinson was one of the best-spoken presenters at the International Conference on Shared Parenting 2017. He’s a law professor in Australia who has studied what happens when the winner parent wants to relocate and take the child(ren) away from the loser parent. (“Relocation” or “Removal” in U.S. family law parlance.)
His introduction was on the subject of the “Promise of Divorce.” In the bad old days, married citizens who wanted to separate or divorce would have to negotiate with their partners and come to an agreement. Legislators gave voters no-fault (“unilateral”) divorce in which at any time a plaintiff could make a fresh start. The plaintiff could get the kids, child support cashflow to go with the kids, a share of any accumulated property, and be able “to form new relationships free from the former partner or court.” The courthouse became a welcoming environment for the plaintiff seeking freedom and a better life with one or more new sex partners.
Parkinson noted that “the Catholic idea of the indissolubility of marriage turned into the unilateral dissolubility of marriage” and everything seemed great and was working according to plan… until lawmakers began to consider the rights of children to maintain some kind of contact with the discarded defendant parent. The felicity of the adult plaintiff crashes into the rock of indissolubility of parenthood.
But what if the winner parent can move to the other side of a continent, thus rendering the child’s “indissoluble” relationship with the loser parent moot? That restore the “promise of divorce” for plaintiffs.
Parkinson noted that it is “almost always mums who want to move and almost always dads who oppose it.” He noted that it is in this relocation case where the rights of the adult mother and the rights of the children come into starkest conflict.
Parkinson explained the context of Australian divorce with “we have gotten away from the winner-take-all system with ‘reasonable access/visitation’ as the wooden spoon for the loser” system, though he noted that only 15 percent of children of divorce/separation in Australia are in shared parenting (i.e., in 85 percent of cases the outcome is just like in the old winner/loser days). The practical decision as to whether a child will spend the rest of his or her life with one parent is made in an “interim parenting” hearing that will last for less than one hour “with no evidence presented.” (As in the U.S., where temporary orders are the de facto resolution of a custody lawsuit, there may be a trial a year or two later where witnesses testify and can be cross-examined.)
Parkinson then proceeded to relate his research on 80 adults, 39 women who had wanted to move with their children and 40 men who had opposed the move. Most of the children were under 10 years of old at the time of the move. Women prevailed in their desire to move 2/3rds of the time (“the mantra in law is ‘happy mum, happy child'” (similar to the Massachusetts standard)). For cases that went all the way to trial, the judgments were roughly 50/50 in allowing or forbidding a move with the children. However, a lot of men gave up after adverse interim rulings or reports. One strategy that successful plaintiffs employed, on the advice of their attorneys, was agreeing to an onerous travel schedule for the kids, e.g., they’ll fly back (5 hours) every month. The defendant would cave in. Mom would then go back to family court a year later and say “this travel schedule really isn’t working for the child” and the judge would modify it down to something minimal.
Parkinson explained that women’s reasons for wanting to move including “going home,” “new partner,” and “getting away from that bastard” and that “only a very small number cited domestic violence.” He noted that while the woman might be moving to go back “home” to her parents, the children were being moved away from their home and one parent. Thus there was almost a perfect balance between the mother’s gain and the children’s loss. A majority of mothers, five years after the move, recognized this. Out of 15 mothers who did move (an average of 1500 km), 8 said that their kids would have been better off if they had stayed and 3 were uncertain.
“Loss of contact was an almost universal experience,” said Parkinson. “Some fathers made heroic efforts, but there was a diminution over time. Conflict before relocation also demotivated fathers. The father would travel 5 hours to see the kids and they wouldn’t be home. The cost of contact was also a big obstacle for ordinary Australians. Expenses were A$15,000 per year at a time when average gross [pre-tax] income was A$45,000 per year.”
As measured by change in happiness over the years of the study, the Australian system works well for plaintiffs. The mothers who moved were the happiest, followed by the mothers who did not move. Fathers were made unhappy by the Australian divorce system, apparently, with the fathers who prevented the mothers from moving still not being too happy and the fathers who’d lost their children entirely being very unhappy. Parkinson said that suicide for divorced fathers was reasonably common in Australia. (See the Children, Mothers, and Fathers chapter for some U.S. statistics.)
Like a lot of Americans who work in the divorce industry, Parkinson was excited by the idea of using the courts to identify and then replicate whatever pattern of child care prevailed while the parents were together. A mother told him “I was a single mother before we separated” and therefore for Parkinson it made sense that the mother should be allowed to move with her children. (See Michigan for an example of a U.S. state where courts may not be interested in the pre-litigation pattern of child care, e.g., “If the wife says ‘the husband didn’t have anything to do with the kids’ the court can respond ‘that’s not necessarily what he will do once he has the kids. Maybe he didn’t come home because he didn’t want to be around you.'”)
Parkinson also thought it was sensible to have courts extend a voluntary breadwinner-dependent partnership into a long-term involuntary one, which is what courts in about half of U.S. states do (see our Summary chapter). The parent who voluntarily works hard during a marital partnership and sees the kids for a few hours every evening is forced by court order to continue working hard and paying a plaintiff while seeing the children a few days per month. Regarding the fact that 85 percent of Australian divorce outcomes are still primary/secondary (winner/loser) parent, Parkinson noted that “men can’t manage shared care because they work too many hours and might also commute an hour or more to work each day. Whereas women work part-time or don’t work.”
For Parkinson, the gold standard seemed to be the child’s pre-lawsuit relationship with the father. Children who had been close with their fathers never recovered from the mother’s move. As in the U.S., he didn’t consider that it might be expensive or difficult to look into the hearts of child and father and ascertain true feelings. The intensity or cost of litigation that such a standard entailed were of no concern. This standard got a reasonably good reception at the conference. I tried it out on a few laypeople later in that week. All immediately dismissed the standard as ridiculous. “How does the court know that the relationship between the child and father won’t change over time? If human relationships didn’t change and evolve, how is that divorce court exists in the first place?” An entrepreneur said “What if the father has been in the middle of a startup working 90 hours/week while the wife is having an affair to keep herself busy? The kids aren’t especially close to the father at that moment, but he won’t be in that phase of the startup for 18 years.” A military officer said “What if the father was deployed for the year prior to the court psychologist interview the children? Isn’t he going to lose automatically?” (see the Practical Tips chapter for how military parents fare in U.S. custody lawsuits) A parent of adult children: “This is a fool’s errand. Who cares about the answer when it is the wrong question. Dad doesn’t like to play dollhouse with a 4-year-old? How does the judge know that the girl won’t grow up to be a soccer player and enjoy spending hours on the field with her dad?”
[Separately, during a coffee break I asked for Parkinson’s perspective on economic incentives in Australian family law. He volunteered that child support was so minimal that it wouldn’t motivate anyone to have a child or opposed shared parenting. What was available to the Australian who had sex with a high-income partner? A$22,000 per year per child. I asked “Well, doesn’t that mean a person who is collecting child support on two kids can have about the same after-tax spending power as the average full-time worker?” The answer was, of course, “yes,” but though Parkinson and I were surrounded by Westin employees presumably motivated to come into work by their (modest) paychecks, he categorically denied that any Australian comes into family court with an eye for child support cash.”]
- William Fabricius, of Arizona State University, presented results of a study of the effects of relocation on 83 adolescents with divorced/separated parents. Relocation was associated with lower quality relationships with all three parental figures (biological mother, biological father, mom’s new boyfriend or husband; stepmoms were not mentioned for some reason) and this was true regardless of which parent had relocated.