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The Problem with Caution


Jill Burrett M Sc, psychologist, Sydney.
Michael Green QC, mediator, Sydney.

Abstract: Well publicised voices have been raised to question the wisdom and benefits of the shared parenting provisions of the amended Family Law Act. Some have pointed to suggestions of harm for children. Generally these affirmations have not been supported by research nor clinical data, and have been made without reference to contrasting studies and the experience of practitioners in the field. "Cautionary Notes" reveals elevated levels of stress in children in some situations of shared care, but fails to analyse the root causes of that stress and to describe strategies for its remediation. We argue that its call for caution in the application of shared care is not soundly based.

It is emerging that there is a minority resistance movement against the shared parenting provisions of the amended Family Law Act. This resistance appears to be located in at least three quarters, and as with similar phenomena in other areas of human activity, it captures a voice and audience which exceeds its value and rationale. The first is the small, strongly conservative section of the family law "industry", highly paid lawyers who tend to promote lengthy adversarial proceedings rather than effective negotiation. Secondly, there are women's groups, inspired by radical feminists, who see the shift in parenting patterns as a means to remove power and money from women and hand it to men. Thirdly, and most worrying of all, are complaints from several academics, who are using data from early research on parenting patterns following the amendments to voice concern about the wisdom of shared parenting. Unlike the US which has a large number of highly respected academics, researchers and clinicians strongly supportive of shared parenting, such a powerful voice is not apparent in Australia.

The most recent example of the latter phenomenon is the McIntosh/Chisholm report Cautionary Notes on the Shared Care of Children in Conflicted Parental Separation. We shall hereafter refer to it as "the Notes".

There is so much of value in this research that strong criticism from those of us who have been proactive in the promotion of shared parenting might appear negative and carping. We all agree, for example, that the shared care of children following parental separation is no simple matter. It has long been recognised that a one-size-fits-all approach to disparate family situations is inappropriate and that the 2006 amendments to the Family Law Act did not intend such an application. It is important for family law practitioners to evaluate carefully the likely results of shared care arrangements in each case that they manage, and to take note of the findings of social science that might assist them to do this. Traditionally there has been an emphasis on providing for meaningful relationships between parents and children consistent with their best interests. We know that serious and protracted conflict injures both parents and children and impacts on sensible parenting situations. We know that factors such as close geographical proximity, child-focused attitudes, cooperation and commitment, and others, generally predict good shared care outcomes. We know that a post-separation parenting plan that is not working, for whatever reason, ought to be reviewed and either changed or assisted by helpful interventions.

The problems with this research as presented in the Notes are not with what it offers, but with what it fails to offer. In other words, we see its negatives in terms of logic, caution and vision.

Logic
The claim that this study does not amount to an argument for or against shared parenting is difficult to accept when clearly the deleterious effects of forms of that care in conflicted parental situations are presented, without any reference to its established benefits (Bauserman 2002) . And when research is presented suggesting "that the developmental benefits of spending time with a parent may be diminished in circumstances of high conflict", and it is suggested that an important buffer for a child in a position of high conflict is "a responsive, warm relationship with at least one parent and a supportive relationship with a sibling", it is clear to the reader that the study does point in one direction. Indeed, at the very end of the Notes, the authors express the hope that their study will contribute to social science and assist legal practitioners to be aware of conditions in which substantially shared care might strain rather than support a child.

The problem is: What conclusions, if any, might the reader draw from this research? We agree with Federal Magistrate Tom Altobelli's comment that the study "does not provide guidance about appropriate parenting arrangements where shared care is contra-indicated" (Altobelli 2008). It is a fair question to ask of the authors of a study of this significance: If it's not working, how do we fix it? You say that children in these situations of high conflict are deeply disturbed. Is your answer: don't do it or do it differently?

To simply urge "caution" in this scenario is to duck the hard questions. It is not helpful for researchers to throw up disturbing findings – especially matters touching on the care of children – and then to rest on the simple counsel "be careful". We acknowledge that the authors state that they are not claiming that the data suggests that parents have no right to shared parenting when risks to the children have been identified. Indeed they suggest that those parents should undertake "appropriate pathways or interventions" such as will give them the parenting skills to make shared parenting work for the benefit of their children. They give no indication whatever as to what those interventions might be, nor how and when they might be sourced.

Let us suppose then, that the authors are saying: In situations of shared care in high conflict, don't do it or do it differently. These alternatives, we say, are fair conclusions based on a fair reading of the Notes. Then, let us look further at the logic of each of those positions.

One of the unfortunate messages that some professionals will derive from the Notes is that if one party reports that there is ongoing conflict between the parents and that the children are stressed, then it's time to pull back from shared care, to reduce time spent with another party. To what extent, then, should it be reduced? By one night, two nights, just every other weekend? Get it back to the old, discredited, sole-mother custody, good-fun dad system? Is that really going to reduce the conflict and expose the children to better parenting? Will they be happy with that? Probably not if it means losing a solid relationship with one parent. What if the conflict is caused by the father's inability to cope with work and child-care? What if the conflict is caused by a mother who had her heart set on sole custody and control of the children, but, having been told by a judge or lawyer that she has to share their parenting, is not committed to it and indulges in activity that sabotages the arrangement? What if the custodial parent is dysfunctional? Is reducing their time with the functional parent in the children's best interests?

These are simply a few of the questions that confront professionals in their daily dealings with conflicted parents. There are many others. We argue that it is simply illogical to suggest that the problem here is the fault of the shared care/time arrangement. Stopping it or reducing it is throwing the baby out with the bathwater. If a reduction in time of itself is seen as a way to reduce conflict, why not reduce parenting time for one parent to zero? Logically, that will eliminate it totally. However, we know that positive relationships between children and parents contribute to children's well-being (Amato 1999, Laumann-Billings 2000). Far better to utilise a mechanism that assists parents, children and professionals to sort out just what is going wrong – mediation, counselling, programs, interventions that we talk about later in these pages – and to engineer strategies and formulas to deal with it. It could be something as discrete and identifiable as continuing litigation between the parents over, say, property division. In other words, it may have nothing to do with the structure of shared care itself.

We recognise, of course, that there are separated families in which no form of shared care is appropriate, and, in some extreme cases, situations that call for little or no contact between children and a non-custodial parent. We have to accept that there are situations where nothing works and where the special needs of children demand radical management.

The Notes do not give us critical information: eg how long the parents had been separated, what had gone on between them and their children prior to mediation or prior to entering the legal system. Nor do they tell us what were the precise circumstances or factors that were causing the children to show levels of anxiety in the clinical range.

Legal issues after separation and divorce can take months and years to resolve. The parents may have decided on parenting arrangements for their children, but remain at loggerheads about the family home. Continuing legal issues almost inevitably place parties under stress and the ensuing tensions often spill over into their attitudes to each other and to their interactions with their children. The conflict set up by protracted litigation, court appearances, legal costs and the like should not be underestimated (Zaidel 2004). It is not limited only to those cases which proceed all the way to a judicial hearing. The legal process begins sometimes in the offices of lawyers who write letters of demand to opposing parties, or when one party files detailed affidavits which trenchantly criticise the behaviour, honesty and reliability of the other party. If parties are sucked into the legal maelstrom in this way and for lengthy periods of time, a huge atmosphere of conflict is set up which renders sensible parenting difficult or impossible and takes several years to settle. This is precisely the situation which the 2006 Shared Parenting Act, with its wise insistence on non-adversarial processes, has attempted to avoid.

Conflict is a complex issue. The term conflict is too often used in an all-embracing fashion. It can range from loud arguments to threats with a weapon. It is always essential to examine the form, nature and level of a conflictual situation before deciding on strategies to deal with it. Should we be surprised that there is conflict after divorce? And resulting high levels of stress for both parents and children? The notes point to 21% in one sample, 28% in the other, of children of conflicted parents as showing high degrees of emotional distress. The authors compare these data to 14% of "non-divorced" children in the Australian population. However, the more useful comparison would be between the children in the sample and all children of divorced families. We have been unable to find any study that reveals such a statistic. Our own experience indicates that high levels of stress in children and adults after separation are not unusual and tend to settle after resolution of parenting arrangements, cessation of litigation, agreement on property division and child support issues, and, above all, the passage of time.

Passage of time is an important factor in parental attitudes and behaviour after separation. Patrick Parkinson in his useful article in the Sydney Morning Herald (6 March 2008) says: "… conflict tends to diminish. Parents can be very raw and angry in the aftermath of separation. As time passes, most parents manage to rebuild their lives and move on." He rightly notes that this study reports on data collected over relatively short time frames. In the Family Court Sample, the data were collected prior to and four months after a litigated settlement of their parenting dispute. Four months is early days in the life of a parenting arrangement. In the Mediation Sample the results were collected prior to, three months after, and 12 months after the mediation. Regrettably, it is the experience of professionals who work with separated parents that a year is not a long time. It normally takes longer than that for parents and children to accept and deal with all the issues that separation brings (Kelly 2005,2006). Attitudes and ideas have to change, radically, because their world has changed. Behaviour is not always ideal, clashes occur, conflict is common, particularly if, as mentioned above, the parties start off on the wrong track and develop bad habits. In our view, there is ample evidence in research literature which demonstrates that it is issues like these that cause the conflict which infects sensible parenting after divorce and damages children in the ways described in the Notes. These are the issues that should be addressed before imputing blame to various forms of shared parenting.

Caution
The term caution is the hallmark of this research as presented in the Notes. Indeed the authors go further: "We suggest that these patterns provide food for thought about the pluses and minuses of shared care arrangements in circumstances of continuing conflict in which parents are unable or unwilling to protect their children from experiencing that conflict. In the context of the current legal and perhaps social support in Australia for greater shared care, these findings sound a cautionary note."

Clearly, when read together with other cautionary dicta in the Notes, it is reasonable to conclude that, despite their protestations, the authors are really saying: when there's high level conflict between parents and serious stress in children, shared care is inappropriate. Caution, we infer, for the authors means stop and pull back. We do not subscribe to that strategy. We have addressed above some aspects of illogicality in that position.

If caution means being very careful to support and assist parents in establishing healthy, child-focused parenting regimes, then we have no argument with the term. Moreover, this emphasis may be seen as consistent with children's best interests. The latter term is much discussed and is capable of unlimited applications. Too often it is used to justify a retreat from the effort of finding out what is wrong and what could work for the children in a given situation. Professionals are heard to report, for instance, that the children want to spend time with both parents but the parents can't agree on details, so shared parenting is simply not in the best interests of the children. There is a hint of that in the authors' contention that the family law legislation does not "endorse an assumption of shared care. The legislation requires professionals to engage in active consideration of the child's best interests in each case." Rather than argue that shared care is fine so long as it is the child's best interests, we say that the better attitude is: Shared care is in the child's best interests, so what can we do to make it work for parents and child and to prevent or eliminate hostility, conflict and bad parenting practices?

This positive construction leads to an enabling approach to the establishment of a healthy parenting regime, whatever form that might take. Rather than a blanket this plan is not working, let's change the plan, the questions asked will be what are the real issues here, the real problems? Why is the plan not working for these parents and children? What are they saying about it, and what interventions would turn it around? We know that healthy relationships between parents and children and close parental involvement in their lives are in their best interests. What do we need to do to see that happen in this particular case? What is required is not caution, but courage, perseverance and determination.

The application of caution in a mistaken honouring of children's best interests can come at enormous cost to children. It is all too easy for judicial officers and professionals to seek to solve the problems of conflict by reducing children's time with one parent. But that ignores the reality that in most cases children desperately want to spend time with both parents, and it eliminates the developmental benefits that shared time carries for the child (Laumann-Billings 2000). It also ignores research demonstrating that high levels of contact with both parents are associated with low levels of conflict (Smyth, 2004). So how does the perceived prevention of conflict through eliminating substantial shared time work for the best interests of the child? Clearly it does not, and may well be as damaging to the child's development as the impact of conflict. This study and other research remind us of the deleterious effects of entrenched and serious conflict on the wellbeing of children. But that is not the only phenomenon that damages children in both intact and separated families.

In other words, we argue that shared parenting should be the default form of parenting after parental separation. Too often it is seen as a special form of parenting that is appropriate only in special circumstances, ie when the parents are totally cooperative, communicative, and completely in tune with the best interests of their children.

Vision
We suggest that the Notes reveal that the authors, in concentrating on the wood, have lost sight of the trees. On several occasions they urge us to take note of what social science tells us about what benefits children, especially regarding a meaningful relationship with both parents. It is a counsel which we, in turn, would urge on the authors.

Speaking at the 2006 Australian Family Law Conference, Dr Joan Kelly said that the most significant loss suffered by children after separation is the loss of a close relationship with one parent. She had said the same earlier: "Over three decades, children have routinely reported the loss of one parent as the most negative aspect of divorce."(Kelly 2005) There is clinical and research evidence that this loss can damage children. Joan Kelly says: "….. the loss of important attachment relationships in childhood has been found to cause a profound sense of loss and anxiety among young children and an increased risk of severe depression in later life." (Kelly 2005) We argue that the risk of this loss must be given its place amongst all the other risks that children of separated families are exposed to and which harm them, including those that are highlighted in the Notes. Further, we maintain that the unjustified disturbance in a child of a healthy and significant relationship is itself a form of abuse. In the same article Dr Kelly urges caution be exercised by professionals "in determining children's living arrangements without regard for the quality of the child's relationship with the parents."

Therefore we argue that the whole of the human situation involved in parent-child relationships and parenting following separation must be considered before valid judgements can be made on how to limit harm and increase satisfaction and value. This will include considerations of the presence of conflict, its level and consequences, the health and strength of relationships, the attitudes and behaviour of the parents, the voices of the children, the factors that limit and facilitate healthy parenting, and the like. It is only with this type of examination, we argue, that useful judgements can be made about a parenting regime, what is wrong with it, what may cure or ameliorate it.

What we see as the narrow treatment in the Notes of the problems in shared care for pre-school children is of concern to us. The authors speak of "the strain imposed for very young children and infants by developmentally inappropriate living arrangements." We agree that parenting plans for very young children must be sensitively and sensibly managed. However, the authors' position that lengthy absences from or frequent interruptions of the care of one parent is likely to injure the security of that child's attachment with that parent, needs to be subjected to the findings of studies not referred to by the authors.

In a key paragraph, the Notes say: "Typical patterns of care for infants involve frequent transitions to avoid lengthy absence from either parent (Kelly & Lamb 2000), but in this way, care with either parent risks becoming a discontinuous experience, and brings about particular difficulties when the primary attachment relationship is disrupted. The potential developmental difficulties for infants are significant, particularly for those with parents who remain acrimonious and struggle to facilitate a smooth transition for the infant (Solomon & George 1999)." The conclusions of the Solomon & George study ( and also Solomon & Biringen 2001) have been challenged in Warshak (2000), Kelly & Lamb (2000), Pruett et al (2004), and Kelly (2005). Moreover if the authors are suggesting that any overnight time between fathers and children of three or four years is harmful to the mother-infant attachment, Dr Kelly says: "No empirical support has sustained these recommendations, including the research of psychologists Judith Solomon and Carol George." (Kelly 2005)

Conclusion
The authors have told us that in gathering the data which supports their study they have worked with small samples. We have pointed out that their data covered short periods of time. Is there much that we can do with their findings? There most certainly is. We believe that the signal message from these studies is we must do better. That current legal and quasi-legal interventions are not good enough. Clearly there are separated families who struggle with parenting arrangements and need help and support. We believe that many are not receiving it. They need professionals who will work with them in an intensive and consistent fashion to enable them to identify the causes of stress in themselves and in their children and to assist them to develop the attitudes and behaviour that will facilitate healthy parenting and a peaceful life for all parties.

We maintain that there is a need in Australia for separated parents and children to be directed to intensive psycho-educational programs, not simply information sessions, but programs requiring the involvement of the parties over six to ten weeks. These could be court-mandated in conflicted families. Such programs, together with the appointment of family/parent coordinators have proved of immense value to parents in difficult family situations (Pedro-Carroll 2005, Wolchik 2005, McKenzie 2000, Neff 2004, Bacon 2004 ).

Parents in research-based divorce education programs, compared with parents without such interventions, have reported increased parental awareness of their children's needs as separate from adult needs; a greater willingness among residential parents to have their children spend time with the nonresident parent; a reduction in parental behaviors that put children in the middle of disputes; better communication; and greater willingness to settle custody and access disputes with their former partner …." .(Kelly 2006)

Shared care of children after divorce is not simple nor easy, nor should it be. It's hard work. Our experience over many years in dealing with separated men, women and children, together with our examination of the research in this area tells us that separation of their parents is cataclysmic for children. It is the end of the world that they know. Their parents have betrayed them. They have broken the family contract. They were entitled to believe that on bringing them into the world their parents would together provide them with home, security, love and support. Now the parents have announced that that is not going to happen any more. This is traumatic for them and they suffer. The research indicates that, in time, most recover, but that a significant proportion carries the scars for many years and even into adulthood.

This underscores the critical necessity for parents to ensure that the new world that they have created for themselves and their children is explained to them, what it means and what is does not mean. Positively, that will entail careful assurances that love and support and relationships will continue. Negatively, it comprises attitudes and behaviour that will minimise stress and conflict, and avoid or soften their experience of loss. Above all, it means that the parents will make huge efforts to set up a parenting arrangement that will reassure their children that they both love them, that they both will care for and support them, and that they both will remain in their lives as involved parents. This takes work. It takes time. It is not surprising that the Notes report in one group a high rate of changed care patterns over a year. Parenting plans will change over time as the children grow and circumstances change. This may represent the creative work of parents responding to the changes or it may mean the system has broken down. Even in the latter case, as Patrick Parkinson comments, "that experience can help the parents to develop more workable arrangements for the future."

The practical consequence of the above will result in a more balanced and comprehensive approach to the examination of parenting arrangements in situations of conflict that are impacting on children. The professional's task is to discover just what are the attitudes, behaviours, situations that are causing the stress and to facilitate therapeutic interventions that will deal with it. Broadly, this means that parents will be required to undergo the programs, counseling and mediation that will assist them to moderate conflict while preserving healthy relationships between them and their children.

Jill Burrett M sc, Psychologist

Micheal Green QC, Mediator

References