This time it’s the divorce of Tom Cruise and Katie Holmes and the issue of child custody of their daughter Suri. Katie Holmes was said to have commenced divorce proceedings in New York as it favours mothers on issues of child custody. They have now managed to resolve their issues with Tom agreeing that Katie will be the primary carer with child custody and he will have generous access or contact with his daughter.
It does however raise an interesting issue and one that affects many separated parents; should mothers automatically have child custody? What about the fathers rights to child custody?
This will resonate with many in the UK who see the English judiciary persistently favouring mothers on the issue of child custody or residence as it is known in the UK.
Is it right that where both parents are equally hands on in raising their children, when the issue of child custody arises, preference is given to mothers simply because they have given birth to the child?
Although legally there is nothing preventing the father from acquiring child custody in reality it seems that the only time that the father’s right is considered for child custody is where the mother has a history of drug, alcohol abuse or mental health issues. Almost on all other occasions where both parents are equally capable of caring for their child, the mother will be regarded as the natural choice for child custody.
Father’s are resigned to alternative weekend contact, and half the holidays.
Many of those working in family law and within the judiciary recognize and are frustrated by the inadequacies of the current system.
The fathers that have regular contact or access with their child are the lucky ones. It is the fathers that are persistently denied child contact or access without justifiable reasons that are caught within the legal system.
When negotiating arrangements for child custody or contact, the general principal is to adopt a conciliatory and non-confrontational approach which would suit the child. In most cases the parents simply require the assistance of solicitors to resolve their issues and they are then able to continue with the child contact arrangements between themselves.
However, there are some cases where the other party is so hostile to any form of negotiation. They require the solicitor to think ahead and prepare for any eventuality. In these cases it is difficult not to get caught up in the parties’ problem which inevitably involves a pendulum of correspondence between the parties. Such scenarios need to be avoided as not only does this increase costs, but it also entrenches the parties against one another, thereby making it very difficult to reach an amicable solution.
With huge public funding cuts, it is inevitable that legal aid will only be available to be a limited number of people; this will also include victims of domestic violence. Those who don’t fall into the criteria will have to fund their own cases. The result will invariably see a large increase in litigants in person, conducting their own cases, and thereby a greater burden on the courts.
As a further result, there is potential for there to be a rise in false allegations of domestic violence in order to receive public funding. Once an allegation of violence is made the courts are extremely cautious to order any child contact until and unless there is clear evidence regarding the same. This means further delays for the parent seeking contact.
Of course, in genuine cases of domestic violence there is a great need to be cautious for the welfare of the child. But, where the allegations are not genuine and are merely made to prevent the other parent (usually the father) from having contact, that parent will have to undergo the necessary checks to satisfy that he is not a risk to the child. Only then will the courts consider making an order for contact.
Unfortunately, the length of time it takes to carry out the necessary checks only increases the time that the father cannot have contact with his child. Even when it is established that the allegations were false the courts are unwilling and reluctant to place any sanctions against the parent who made the allegations, even when that parent goes on to breach contact orders.
The recent government review of the current system has attempted to address the imbalance and ensure greater rights to fathers seeking contact. One of the recommendations is for parents to enter into a parenting agreement and for cases to be resolved within 6 months. It will be interesting to see what changes these will bring to the current system and whether there will be any improvement for father’s rights to contact.
As part of the Government’s reforms, they have introduced the idea of a legal presumption of shared parenting. This has lead to concern that parents’ rights will supersede that of their children, and a risk of parents becoming more litigious in trying to establish their rights. Separated fathers on the other hand consider it a step in the right direction with the parental rights more equally distributed. If the review is implemented it will be interesting to see whether the reforms will lead to improved father’s rights to child custody.