Keith Rankin's Thursday Column

 Shared Responsibility; Negotiated No-Fault Custody

 9 March 2000


Whangarei List MP Muriel Newman should be congratulated for her shared parenting bill, presented to Parliament last week. An Act MP, she is entering into a minefield of family and gender politics, which means that the bill will probably fail.

Nevertheless, she has already stimulated plenty of newspaper column inches. Much of that writing completely misses the point.

The bill is not an attempt to make 50:50 shared custody the normal outcome following the separation of children's parents. Rather, by proposing 50:50 parenting as a default position, it is an attempt to get separated parents to construct a solution, rather than leave it to strangers in the Family Court to adjudicate. Further, intransigent behaviour by either parent would no longer be rewarded.

The bill recognises that, in general, it is in children's interest to have substantial relationships with both parents; that parents should be jointly responsible for their children.

The Newman bill is also important in that it addresses the politics of protection orders. The bill proposes that penalties should be imposed on parents who make false accusations of domestic violence in order to gain the protection orders that are routinely used to give mainly women sufficient leverage to be granted full custody of their children. In practice, full custody granted to either parent gives that parent the opportunity to veto the other parent from playing any meaningful non-financial role in their children's lives.

My only criticism of the Newman bill is that it fails to address situations where claims of domestic violence are not false but are nevertheless used primarily to gain sole custody and to control the access of the other parent.

Domestic violence is a difficult subject to discuss dispassionately, lest the discussant appear to be excusing domestic violence. In reality, a person who tries to see the issue in any colours other than black and white is in the same position as someone who is pro-choice on abortion. Being pro-choice is not the same as being pro-abortion, but is often presented as pro-abortion.

Domestic violence is notoriously difficult to define. (I will confine my discussion here to violence between parents, and not violence inflicted by parents upon children. However violence towards children can be just as hard to pinpoint. Routine beating of a child is quite different from an occasional smack.)

At one end of the domestic violence spectrum is repeated hardcore physical violence. This is probably an addictive behaviour, like alcoholism. Most hardcore violence addicts who physically injure their partners are men. Such men disqualify themselves from being awarded custody or even substantial access to their children.

While this kind of violence is a serious problem and may be more common in Godzone than many of us would like to admit, much domestic violence does not follow this caricature.

Most definitions of domestic violence would include any act of "striking" one's partner. But what about "pushing" or "slapping" or "throwing things at"? What about destroying partners' or joint property? What about neglect (eg refusing to talk for a protracted period)? Neglect of children is now accepted as a form of child abuse. Under some definitions, 99% percent of parents will have been guilty of at least one act of domestic violence.

We hear increasingly about non-physical violence; eg verbal violence, which, like striking, is frequently presented as a male-only form of abuse. Yet in other discussions we hear that women have more sophisticated verbal skills, which suggests that they might have a comparative advantage in verbal violence. In addition to physical and verbal violence, there are the many permutations of domestic blackmail.

Where do you draw the line between unacceptable and normal levels of violence? Is a normally non-violent person who strike's their partner while under acute stress a worse person - or a less-fit parent - than a control freak who indulges in protracted manipulation of their partner? Can a person who once or twice behaves badly be labelled a bad person; an unfit parent? Who has never behaved badly towards another person?

(Winston Churchill, Franklin Roosevelt and Bill Clinton are all known to have had blemished personal lives. Not so Adolf Hitler. Would Hitler really have been the better parent?)

Anyone who watches rugby will know that for every violent incident that is cited, there are three or four that go unseen. (When Sean Fitzpatrick's ear was bitten, was he a totally innocent party?) Indeed, in just about any sport, it is a successful tactic to incite violent or undisciplined behaviour in your opponent. In cricket such provocation is called "sledging".

Could it just be possible that some acts of domestic violence are deliberately provoked; the family equivalent of sledging? Is a person who sledges their partner a better parent than a person who takes the bait and loses control? How do we adjudicate on domestic violence if both partners have been violent, but have been violent in different ways?

The Newman bill, if passed into law, will remove the strategic option of making false claims of domestic violence. In doing so, it will increase the strategic advantage of being able to make a true claim.

Parents contemplating separation and wishing to gain full custody of their children will have an incentive to provoke their partner into an unambiguously violent act. The potential gain (sole custody) would outweigh the cost. (Only an angel or a cold fish can resist provocation indefinitely; every person has a capacity for violence.) Many years of continuous non-violence might count for nothing if a single incident of violence can be proven. A person who chooses to be a victim will have significant bargaining power in the Family Court, even under the Newman bill. (Of course I am not claiming that most victims of domestic violence choose to be victims.)

It is now rightly accepted that divorce should be conducted on a no-fault basis. Child Support is also imposed on a no-fault basis. The Newman bill simply goes part of the way to determining custody and access on the same no-fault basis.

A full resolution of the problem (which economists know as "game theory") requires that the granting of protection orders be depoliticised. Specifically, that means that being the respondent in a protection order cannot be used as evidence of violence. It also means that a respondent should be equally protected from violence perpetrated by the complainant.

Protection is a serious matter. We - women, children, and men - should all be safe inside our homes. Anyone should be able to buy a protection order without having to justify their fear. Such a protection order would be served on the person or persons cited. All persons cited in the order would be equally protected. Under this proposal, levels of protection could be increased, while the opportunity to misuse a protection order would be eliminated. As it stands, there are strategic incentives for holders of protection orders to provoke (itself a form of violence) respondents to breech those orders. (Again it should be noted that most breeches of protection orders are probably unprovoked.)

In most cases in which parents separate, both parents have behaved badly, especially in the months just before separation. Parents should be obliged to negotiate custody - to take joint responsibility for their children after separation. The question of past violence should only arise in the small fraction of cases which involve protracted hardcore violence. Parents who have behaved badly towards each other, if bad parents, are likely to be equally bad. (The really bad parents probably don't want their children, so there's no contest to be resolved.) Ultimately, children need their parents - their own parents - warts and all.

Finally, custody arrangements that lead to "violent" parents losing contact with their children create the probability of step-parents. There must be many cases in which children are at greater risk from step-parents than they ever would have been from natural parents who have been violent once in a while. Shared responsibility on the part of natural parents for their children should minimise the risk of step-parent abuse.

Ultimately, domestic violence can only be minimised if the social, biological and economic causes of domestic conflict are addressed. Domestic violence is an important issue that should normally be separated from the determination of custody when parents separate.

Feedback from Leon Grice plus rejoinder:

I commend you on your thought provoking piece. I raise one issue about the 50:50 default and your arguments. There is no doubt in my mind that healthy access to both parents is desirable (violent situations excepted). However, I do not believe that defining it in terms of quantum access is sensible. If we consider the needs of children at time of separation, then their priorities might be:

50:50 access just doesn't do this. It is inherently discontinuous and creates instability in terms of parental guidance (lets not forget that when most people break up they have irreconciliable differences and frequently have no respect for each other).

I have seen in my nephews the unnecessary anxiety (admittedly it lessens over time) caused by separation and quantum access arrangements. My preference is for there to be a primary parent at times of separation who continues to run the house, the everyday life and is responsible for continuity and stability. The separated parent also needs to understand that over time access will naturally increase as the temperature of the marriage separation reduces and the child seeks out the relationship (which they invariably do). These things normally find a proper balance over time.

But, and this is my point, to mandate a balance at time of separation is something which may recognises the "rights" of parents while overlooking the needs of the child/ren.

I would enjoy reading a response.

Leon Grice

Dear Leon,

Thanks for your comments.

I do not disagree with you. Muriel's Bill is not about making 50:50 custody the norm. Rather its about creating a situation which obliges both separated parents to make appropriate decisions about the custody of their children. The contrast is that at present, one parent (usually the mother) can "win" custody by being obstructive, negative, intransigent, because the default position favours the person deemed the caregiver before separation.

There is a problem that I didn't discuss, and that is how Muriel's bill might interact with the Child Support Act. The CSA creates severe financial problems for fathers who care for their children for less than 40% of the time (eg weekends). The result is that, under Muriel's bill, many fathers who would prefer to negotiate weekend "access" will go for 6 or 7 days per fortnight in order to escape the debilitating consequences of a CSA which was designed under the presumption that separated fathers prefer to abandon their children.

At minimum the CSA would need to be changed, so that payments reflect the proportion of each year in which parents with "access" are actually the caregivers. After all, the total cost of caring for a child for 120 days per year are not that much different from the costs of caring for a child for 240 days per year. Many of the costs are fixed costs.

So I would strongly argue that the Newman Bill contains no explicit or implicit preference for 50:50 custody arrangements. But, in practice, given the existing CSA, many fathers would use the increased negotiating power it gives them to choose 50:50, even though they might prefer (in the interest of the children affected as well as to fit in with their own work schedules) 30:70 or 10:90.

regards, Keith R

Let's balance the access when families fall apart, Muriel Newman, NZ Herald, 1 Mar 2000

Fighting a Custodial Sentence, Sunday Star-Times, 5 Mar 2000

Plan for equal sharing of child care won't work, Norman Elliott, NZ Herald, 6 Mar 2000

Thought for the Weekend: In the best interests of the children, NZ Herald, 18 Mar 2000

© 2000   Keith Rankin

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