Suffer the Children (of Divorce) - A Jurisprudential Thought

The world changes. We change. Things change faster than we realise. On the seventh anniversary of the iPhone debut (29 June 2006), children now swipe, splay, pinch and tap long before they hold a pencil. Their brains are being wired differently to ours. Scientists find some infants are even losing the ability to empathise as they are faced by a parent’s botoxed forehead unable to reflect emotions. The brain is plastic: “what fires together, wires together.”

Not only does human hardware change, but so too the software. In the last 10 - 15 years brain imaging has given new insights into the value and importance of relationships and of relationships in connection with the environment. We no longer look at the physical individual in isolation - gene decoding has led to epigenetics, which shows how the environment turns our genes on and off; how the environment influences our possibilities and thus our choices.

These findings make it important to reconsider what happens when a previously-intact family unit, where both parents have formed a relationship with the child, disintegrates in divorce; and how far our outdated legislation aggravates the current situation for a child of divorce.

Custody law came to HK in 1886; before cars

For a long time, our old law reflected society. The world used to move slowly. After World War II, peace and prosperity saw changing roles for men and women: men were less likely to be cannon fodder, the women’s liberation movement created new opportunities, and more children were surviving into adulthood. In 1961, Singapore introduced the concept of “Parental Responsibility” in its legislation on the “Rights and Duties of Husband and Wife”.

By the 1980s fathers were increasingly involved with their children and parent-child studies were re-formed to include fathers. These studies found that children bonded with both parents and the question of to which parent to turn for comfort was a developmental issue – eg at 15 to 18 months, when autonomy was the issue, the children turned to their fathers most of the time.

Brain studies now show that a child who experiences a caring, involved father will in turn be more caring and involved with their own child. Both the adult and the child’s brains change and the next generation becomes more nurtured and nurturing. This virtuous spiral is likely a cause for the current push to have mandated Paternity Leave.

We also now better understand that where a father has formed a positive relationship with a child, the loss of that relationship is a significant detriment to the child, especially if the child cannot grieve that loss and, if the parents are so caught up in their own conflict, that they give a child a loyalty choice. Unsurprisingly some adult children of divorce report having chosen to be with a parent because a) they felt that parent was least able handle the loss of the child, or b) they most feared the repercussion of not choosing that parent.

Looking forward: Parental Responsibility

As children and our future have become so much more important than our past, our legislation should be forward looking as well. Parental Responsibility recognizes the existence of a family group, and that children have separate rights, needs, desires and choices. Parental Responsibility re-casts the environment in which families operate and focuses on the future.

Further, akin to land law terminology of Joint Tenants and Tenants-In-Common, Parental Responsibility allows for Joint Parents or Parents-In-Common. Divorce is between spouses, not parent and child.

When modern Hong Kong parents, who have previously divided up their parental responsibilities of child-minding and income generation in their own manner, divorce in Hong Kong, most can look to their children’s interests as paramount; yet they have to fit a square peg into a round hole.

Nowadays “reasonable access” – means undefined access more often relying on the parents to be reasonable. “Defined access” used to be an insult; it is now a preferred way for two working parents to schedule time with a child. We also now know that the optimal range of sharing time is 30 – 50%, with the 20% differential allowing for practicalities of life, the child’s needs, as well as developmental stages.

Where one parent remains supportive of the other as a parent, the percentage of time share can be unimportant as such support maintains the child’s connection with the other parent. Lack of support makes time share a more crucial issue between parents.

Conflicted parents, previously a team but they now do not support or even recognize each other as parents, are the ones that take up most of the court’s time. To them Custody terminology is a red rag to a bull. Often Custody issues fuel the understandably unresolved feelings of anger and humiliation. It produces an outdated, past-oriented environment of punishment, loss, retribution and fear. Those that do not want to include and share, use the legal terminology to exclude and blame.

Fights over who is the “primary parent” means the parent who allocated more time to income generation, and probably has had to sacrifice time at home to do so, is now painted as secondary and dispensable. And whereas previously the more-at-home parent would have supported the relationship between children and the more-away parent, now, that support is gone lest it bolster the other as a viable parent.

As nowadays most living-together parents are involved with their children, Custody law encourages more fighting to avoid being “Out”. You are “Out” unless the court finds you “In”. Parental Responsibility encourages inclusion and recognition – you are “In” unless the Court finds you “out”.

Once sharing was better understood, the 2006 Australian Family Law reforms saw a 20% drop in child-related cases for 2010-2011, and a reduction of nearly one third for court work load in the five years previous to 2012.

The government knows it must change the environment before there is a change in behavior; it applied these principles in promoting mediation. Whereas once it was shown that mediation could help some disputes, the government realized that there was going to be no large scale change in dispute culture unless the legal environment was altered first; Practice Direction 31 changed the environment.

Similarly with Parental Responsibility, if it is promoted by the legislation as the ideal environment, we will get more acknowledgement at the outset of a case that the other parent should retain a meaningful relationship with the child.

High-conflict divorcing parents can do terrible things to each other, and wittingly or unwittingly to their children. The effects on children are sometimes only seen years later, and often manifest as mental rigidity and difficulty in relationships. Children encouraged to do homework and classes instead of having access time with a parent, often turn into workaholics valuing work over relationships.

A parent in conflict is often hostile, anxious and too stressed to enjoy their time with the child or to see their child’s needs as separate. This has been the traditional rationale to minimize a child’s relationship with the other parent.

Modern world, modern approach

But computers have changed things for children and parents alike. Since 2006 and age of the smart-phone we have internet-based programmes that eliminate the need for one parent to have sight or sound of the other. Parallel Parenting is available. Parallel Parents are parents-in-common. The Internet allows the paradox of keeping in touch without keeping in touch.

Computer programmes such as “Our Family Wizard”, and their Apps for Apple and Android, allow parents to coordinate their children’s lives without requiring close contact.

In the 21st century, knowing what we do about parents, children, environments, while having access to modern communication systems, Custody should be put aside as an outdated approach to be replaced by the modern future-oriented environment of Parental Responsibility.

By Maureen Mueller Private Mediator