Ireland: Tender Years Doctrine Removes Dads from Kids’ Lives

October 28, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Dads of the world, be thankful you don’t live in Ireland. If you do live in Ireland, consider moving elsewhere. Why? Because the practices of Irish family court judges are so anti-father/anti-child as to set new standards for each. The findings of Roisin O’Shea’s study of family courts that I began conveying yesterday continue.

It is a finding of this research that where court orders were made relating to access and parenting, that the outcome of those orders, was that the ‘tender years’ principle was almost uniformly applied.

That is, in couples with young children, fathers are routinely removed from the children’s lives. Yesterday, we learned that 95% of custody orders give primary custody to mothers, so, as a practical matter, the Tender Years Doctrine, although rigidly adhered to by judges, doesn’t make much difference. The TYD refers to young kids, but, since essentially all children find themselves cared for primarily or exclusively by their mothers post-divorce, the TYD scarcely matters. Even so, at least one of the five judges interviewed by O’Shea took a remarkably expansive view of the TYD.

Judge 1 “I believe that children should be left with their mother at least until they are 12 or 13…”

In that judge’s court then, no father with kids 12 years old or under should even consider asking for custody. He won’t get it. Period. Regardless of the mother’s fitness or lack thereof, the child will live with its mother.

But maybe, just maybe, even though mothers get primary custody, fathers get ample parenting time. That’s at least a possibility. True, but it doesn’t happen. As with everything else in Irish family courts, fathers are persona non grata.

The types of access orders made, ensure that primary carers become the pre-dominant parent, with very limited time allocated to the non-resident parent…

A standard access arrangement for the non-resident parent, primarily fathers, that permeated across all courts as a default position, was the policy of ordering access every second weekend, for a period of hours during the day, and once or twice mid-week for a couple of hours. This arrangement did not appear to be informed by any social studies or child centred research…

The least amount of parenting time usually given to fathers in the U.S. is about 14%. In Ireland it appears to be about half that or less.

Surely, having given dads so little parenting time, at least Irish judges enforce their orders, right? Wrong.

All of the judges interviewed acknowledged that persistent breaches of court ordered access was a chronic problem, but did not believe that attachment and committal was an appropriate sanction where the primary carer was the mother.

What, if anything, did those judges do to enforce their orders? O’Shea doesn’t say, but arresting the miscreant mother wasn’t an alternative for any of the 13 judges whose orders she analyzed. O’Shea also doesn’t say what those judges do if it’s one of the rare custodial fathers who’s interfering with a mother’s access. She suggests though that the practice of refusing to enforce orders via contempt and arrest is reserved for mothers.

As we’ve seen before, much the same regime rules in Australia and Canada. In the former, case law actually forbids the enforcement of access orders via the court’s contempt powers. Given that about 90% of non-custodial parents there are fathers, it’s hard not to notice that that legal precedent has radically sexist outcomes. And in Canada, the then chief judge of Ontario’s family courts, Harvey Brownstone, actually pretended in an interview that the only sanction available to him to punish custodial parents was jail. He knows perfectly well that’s not the case, but his distaste for enforcing fathers’ rights was such that he stooped to the pretense.

But perhaps violation of access orders isn’t common in Ireland. No, actually the opposite is true. Of course, given the fact that judges don’t seem to punish mothers who violate their orders, it’s not surprising that many do.

Primary carers, the majority of whom were women, often sought to severely restrict or exclude the other parent from the lives of the children, on the basis that frequent contact with the non-resident parent distressed them, and in turn distressed the children.

That identity of interests between mothers and children regarding contact with Dad would be surprising if it were true. The idea that seeing Dad upsets Mom and therefore little Andy or Jenny finds no support in the literature on parenting and child well-being. What upsets kids is not seeing both parents a reasonable amount of time. In cases in which Mom’s upset about Dad is mirrored by the child, we’ve come to suspect parental alienation on her part. Again, O’Shea doesn’t go into that, but, from the outside looking in, that’s what’s suggested.

I’ll do more tomorrow on child support and division of assets. Guess what. Irish judges blatantly discriminate against dads in those areas too. I think I’m beginning to notice a pattern.




National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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