October 27, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In 2014, the first of its kind study of family courts in Ireland was published. It was conducted by Roisin O’Shea and makes clear the travails of Irish dads unfortunate enough to be divorced by their wives. Irish family courts make American ones look like paradigms of wisdom and fairness.
At the time of the study, O’Shea was a doctoral student who says of her work on family courts,
“I now know this is my path for the rest of my life; I want to do whatever I can to assist bring about very necessary reform”.
Her study was comprehensive. It included 13 different judicial circuits over 40 months from October, 2008 to February, 2012. O’Shea looked at 1087 different cases and interviewed six judges. Her findings are chilling.
First, Irish family court judges don’t particularly like the litigants in their courtrooms. They prefer to talk to barristers, and when they do, litigants are often left wondering what’s going on.
[L]itigants, who attend at court, are generally treated as peripheral to their case, by the custom and practice of the family law courts. Litigants must usually operate two steps (solicitor, barrister) removed from any discussion relating to their case and are seated at a distance from the legal players and proceedings within the court- room. Judges very rarely spoke directly to litigants where they had representation, unless that litigant was on the stand giving evidence. The formality and age-old traditions operated by the officers of the court, and the court itself, clearly created an uncomfortable and often incomprehensible forum for litigants.
But that’s the good news. When O’Shea’s report turns to the nitty gritty of family court procedures and outcomes, the dark reality of child custody law and practice become painfully clear.
In 95% of the cases observed the primary carer was the mother, and in 100% of cases where access was unilaterally withdrawn, it was done by the mother.
In no case was the primary carer sanctioned for persistent unilateral cessation of access in breach of court orders.
So in Ireland, mothers are given sole or primary custody in 95% of cases and, when access was interfered with, it was invariably the mother who did so. Those 5% of cases in which fathers had custody saw no interference by him with the mother’s access to the child.
Irish judges aren’t interested in what children have to say about their custody, despite their having the right to do so under the European Convention on the Rights of the Child.
In no case were the views of any child heard directly by a judge, the views of the child were expressed through the primary carer or through court ordered expert reports where there were allegations of abuse. On several occasions counsel asked the court if a child could speak with a judge, in all instances this request was refused.
In no case observed did a judge ask to meet with a child in any matter that affected them, despite such rights being stated in the U.N. Convention on the Rights of the Child, 1989.
Just as in the United States, it’s overwhelmingly women who file for divorce. O’Shea doesn’t deal with the issue, but my guess is that, again as here, that’s because, in the words of researchers Margaret Brinig and Douglas Allen, “they know they won’t lose their kids.” After all, if a woman knows there’s no downside to her in seeking a divorce, why wouldn’t she if she’s the least bit unhappy with her marriage?
In divorce cases where there were dependent children, 71% of the applications were made by women, and in judicial separation cases where there were dependent children 75% of the applications were made by women.
And again much like in the United States, child support orders overwhelmingly have mothers as their recipients.
100% of maintenance orders were made in favour of the wife; where the husband was the primary carer no application came before the court for maintenance from the liable wife.
Here in the U.S., about 10.7% of child support orders go to dads despite their making up about 18% of custodial parents. But in both countries, it’s much more likely for a father to have no order of child support than it is for a mother. Why? I suspect a couple of things answer that question. My guess is that, most importantly, when a father does manage to get custody, it’s because Mom is so deficient as a parent that there was no choice on the judge’s part. She’s clearly unfit, a drug addict, an alcoholic, a felon, etc. In all of those cases, the fact that she didn’t get custody is the same reason she doesn’t have to pay support – she can’t. Second, my guess is that fathers who get custody are so thankful to do so that they don’t dare push their luck by asking for money too.
That’s substantially what was found in Great Britain by Maebh Harding, et al about which I wrote here. In that study, fathers who won custody overwhelmingly did so against mothers who were particularly deficient, often in a variety of ways.
[I]n the few cases in which one parent or the other sought a shared residence order (in which the child lives part-time with each parent), fathers were named the primary parent more often than were mothers. Success, right? Yes, but,
In the majority of these cases there were current or past child welfare related allegations against the mothers.
That is, the father was granted primary custody because the mother was demonstrably bad enough that he figured he could win and did. The authors cite a neglectful mother and one using heroin as examples of the phenomenon.
That we’re dealing with a special cohort of fathers — those associated with particularly ill-equipped mothers — becomes even more apparent on page 78 of the study. There the authors state bluntly that fathers who sought any sort of residence order, i.e. some form of child custody, tended strongly to be those whose ex was uniquely unqualified for custody.
[T]here was a clear correlation between the presence of very serious child welfare concerns and applications by fathers for residence orders.
And again on page 30:
In the first, and largest, category (of fathers seeking sole custody) were cases where the father sought to become the primary care giver or have his status confirmed because the mother could not cope. In 16 cases a change of residence was sought, from mum to dad, because of child welfare and safety concerns that had manifested in recent crises. In 4 further cases where dad was the established primary care giver for over 1 year the child had initially been placed with him due to mum’s inability to cope due to drugs or mental health issues.
Clearly then, the authors’ data reflect relatively good success by fathers seeking sole or shared residential custody. But they were able to do so because they looked almost exclusively at cases in which the mothers posed “very serious child welfare concerns.”
I suspect the same to have been true in the Irish cases studied by O’Shea. More on this tomorrow.
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