Family Law: Assumptions and Myths

I always thought that one of the reasons why so many of my clients ask me questions about our family law system that suggest an enormous number of people have strongly held incorrect views about what happens in family court, is because our cases are heard in camera (i.e., in private, meaning no members of the public and limited if any reporting). However, it appears that the same misunderstandings and stories abound in many of the US jurisdictions, England and Australia. I am sure if I was multi lingual I would probably find that they are everywhere and astonishingly they are remarkably similar in all of these places. Two of the strongest opinions held by the public and frequently expressed in public would be that: 1. Men seldom if ever get custody of their children and, 2. Men lose out financially and property wise in family court compared to women. It may come as a surprise to learn that people in Britain, Australia and many parts of the US have exactly the same perception despite different systems, legislation and much longer experience in the area of separation and divorce than we have in Ireland. As a general comment on the two opinions expressed above, I would say that women often have the same view as it applies to them i.e., that they will automatically get custody of the children however, women also feel in common with men that they will get a raw deal in family court financially and property wise. So what about those two opinions – are they true? Most men now get joint custody of their children post separation from the family courts. It is rare for that not to be the case. This means that the court recognizes that the children have a home with both parents. What it does not mean is that the children will spend precisely the same amount of time with each parent. Unless you are the ex next door or upstairs there is really no practical reality in that idea. Joint custody does not mean 50-50 when it comes to time spent with the children. It does mean that the children live for some time each month with both parents. What joint custody also means is joint parental responsibility. There is a tendency to focus on rights rather than responsibilities often to the neglect of the latter. Generally rights follow responsibilities. In other words a parent who is behaving responsibly and taking responsibility for their children is very likely to be accorded all their rights by the court, collaboratively or in mediation. Parents who behave responsibly do not involve their children in the conflict either as witnesses or directly if there is conflict because they know that this damages children no matter how upset they are. They do not refer to the other party as “your mother” or “your father”. They do not give their children gritted teeth messages for the other parent. They do not phone each other when the children are present shouting and roaring ensuring that the children probably overhear or that the parent with the children is upset and the children can see that. They do not make disparaging remarks about each other directly to the children or in their hearing. They try and keep their emotions in check around their children so that the children do not associate pleasing Mum with refusing to visit with Dad and vice versa. Remember your children did not ask to be born, they owe you nothing. If you are very lucky, behave yourself like a good parent and raise them properly they may see themselves as having a responsibility to you in your old age. For now, you are responsible for them. A good responsible parent understands that even if the other parent is behaving badly, the children still deserve one mature adult in their lives and they rise to the occasion. It is very important, however, to remember that parents have obligations and social matters which will take them out of the home at varying times and this will not change post separation and furthermore, children have varying needs, their own obligations and social matters which also require them to be out of the home at various times. This means that generally it is not possible, even if it is desirable, to divide children’s time on a 50-50 basis. Everyone’s needs and commitments have to come into the balance and be given attention in determining what will work and what will not. Parenting plans, to be of any value, need to be carefully drawn up with the help of an expert. This is most especially so in the first year or two after separation when emotions are still likely to be fairly raw, trust at an all time low and the children have an enormous need for secure arrangements so they can adapt. Lawyers need to start to use the phrase “parental responsibility” as an umbrella term when discussing these matters with clients and in public rather than the terms Guardianship, custody and access. This phrase puts the focus where it needs to be and less on the idea of ownership and rights which seem implicit in the notion of custody and access. Guardianship as a concept simply does not work since very few people seem to understand it. In summary there is no presumption by Judges or in law that mothers always get the children. Women frequently, but not always, have more overnights than men and the children tend to have their base with Mum. Quite often this reflects the fact that arrangements in place pre separation remain, in so far as possible, in place post separation. Do women do better than men in financial terms in a separation or divorce? Not in my experience and the research would indicate that this is not the case. Quite often, though not invariably, women have sacrificed their careers to raise their families either by taking a back seat at work in terms of promotion, opting for part time work or giving up work altogether. Seldom, in my experience, do men make the choice to stay at home because of a wish to be involved more directly in the raising of children. In my experience, men who stay at home or work part time do so either because they want to work from home, ie start a business at home, were made redundant or lost their job and work part time because they are supplementing a business scheme or because that is the only work they could get. In general, therefore, women tend to have the primary responsibility for child rearing in the family and that is not in any sense to disparage the role of men but rather to state what is the “norm”. Many detrimental economic consequences flow from having primary responsibility for child care. Accordingly, women, on average, tend to earn less than men both because of the lifestyle and family choices the couple have made but also because that is still the case in fact. Therefore, women do not come into the family court in an equal position and a 50-50 split would not be reasonable or fair in such circumstances. Equality does not always mean 50-50. Research shows that men tend to recover more quickly financially following on from a divorce. Generally speaking, men have been in the workplace from the beginning of the marriage with no break and not only do they go to work, they also tend to make contacts associated with work and to nurture those contacts either on the golf course, drinks with the lads, squash, business lunches etc., very little of which, women will have any time for since a woman working part time is usually squashing a full working day into the hours she has at work and will eat at her desk or on the run and every moment not at work will be spent with her children, collecting them from school, helping them with their homework, shopping and getting meals ready, doing laundry, cleaning etc., Her social life, if she is lucky enough to have one, will probably consist mainly of the people she runs into in the supermarket, at the school drop off and those neighbours who drop into her home and chat to her while she hopes to God that they go home soon so she can get on with what she has to do. Women who are at home full time will, on returning to work, suffer financially compared to men of similar age, have huge child care costs, logistical difficulties which curtail their social lives to a minimum and few contacts to assist them to better jobs. Women who have full time careers and growing families are in a minority and will be treated separately by a court in such circumstances, each case being looked at on the facts of that case. Men recover financially because they are more likely to have a career as opposed to a job and a promotional path accordingly, they have good contacts, a track record at work and a track record financially all of which is very important to recovery. Precisely because women are often considerably less well off when viewed individually as opposed to being part of a couple and because they will continue to have, most likely, primary responsibility for the children, they need more of the financial resources of the couple than a 50-50 split would give them. However, if a woman does have more individually than her partner the courts will look at that very differently. In summary therefore, women do not “scoop the pot” when it comes to divorce. Clients often think and frequently express the view that if the divorcing party is in the wrong, they should pay. A number of false assumptions are bound up in this. If by pay, punishment is implied, that is not going to happen. There is no punishment for wrong doing in family court except in very extreme circumstances, so extreme in fact, that as a family law practitioner I have never encountered sufficiently extreme circumstances to warrant punishment from the court. When a client refers to wrong they generally mean that the divorcing party is now in another relationship. A new relationship will not be punished by the court and the only relevance it has to their deliberations is whether or not it is directly affecting the children which might affect custody or access issues and if the relationship is depleting financial resources of the marriage. Otherwise it has no real significance. If by “pay” the client means that the divorcing party should pay all the legal bills then that too is not going to happen. Nowadays it is very rare to get an award of costs against a party in family cases and that applies right across the board no matter what the circumstances of the separation or divorce. Another aspect of this issue is the idea which clients occasionally have that if one party want the divorce and the other does not, then the party who seeks the divorce should foot the bill for both. Sometimes, if a party wants a divorce urgently they may facilitate agreement by offering a contribution to the other’s costs but that is generally as far as it goes and it is by no means common nor is there any legal obligation to do so. The idea that the divorcing party should pay either because they are in the wrong or because they are the one asking for the divorce is often combined with the belief that divorce requires the consent of both spouses. The idea is that if I withhold my consent, he/she cannot get a divorce and if he/she wants my consent then they will have to pay for it. Separation and Divorce cases do not require the consent of the other spouse. A party can apply to court regardless of whether the other party wants to separate/divorce or not. One of the statements frequently made by clients not necessarily to solicitors but about solicitors is that it does not make any difference what solicitor you get to deal with your case. Nothing could be further from the truth. Solicitors are not all the same, nor are they all crooks or any of the statements commonly made. Solicitors, particularly in family law, operate from widely varying philosophies and approaches to legal cases. It is important to carefully select a solicitor who has the qualifications, philosophy with which you are most comfortable. Before leaving the area of marriage, I would like to nod in the direction of another myth which is that the courts have a formula to work out appropriate maintenance and child support. They do not. Spousal and/or child support is worked on the basis of the facts of each particular case. The court has general guidelines about what is to be considered in determining these matters but there is no formula. Judges have a wide discretion in such matters. Non marital families also have their fair share of commonly held and usually false assumptions. Unmarried fathers often believe that if their name is on the Birth Certificate this fact gives them rights. That is not true in Ireland. In Ireland a single father has to apply to be appointed a guardian of his child and no difference is made in that regard whether the father has been or is living with the child as part of a family or not at all in terms of having to apply. However, a Judge considering the issue of Guardianship would likely take a very different view of a father who has lived with his child in a family for a period of time to a father who has had no relationship of that nature. An unmarried mother is automatically a guardian of her child and she can agree to the father being appointed and they can sign a form to that effect. The form needs to be sourced from a solicitor, from a District Court Office or from some of the websites dealing with family issues. It is very important to read the instructions for the completion of the form carefully. If you plan on having an ongoing relationship with your child and being a responsible parent then it is very important that you apply for guardianship if you are a single father and if there is no agreement. This is particularly so if there is any possibility that the mother might move out of the country. I cannot stress this enough as you must either have a court case pending or have been appointed a guardian to be afforded rights under the Hague Convention in relation to child abduction. Occasionally solicitors will also be informed that the client believes he has no obligations to his child because he is not on the birth certificate. That is not true. The child’s mother can still look for child support from the father whether or not he is on the birth certificate. Clients often articulate that they want to go to court because there is a principle involved. My late father would often remind me in the context of driving that it was no good being right if you were dead. In family cases it is never worth going to court on a point of principle. First of all, it is expensive, emotionally draining and time consuming. Secondly, the courts have limited time to hear cases and want to deal with facts and make decisions not listen to points of principle. Thirdly, your family will be even more alienated and less able to transition as a result of the exercise which in turn will result in poor communication, conflict and dysfunctional children. Related to the point of principle but not quite the same is the idea that I want justice. Justice, like beauty, is in the eye of the beholder. Over the years I have found it very hard to explain to clients why child support and access are not co-dependent. In other words, if the supporting parent stops or arbitrarily reduces the maintenance without court order then the other parent can refuse access. Courts can take a dim view of this behaviour on the part of the custodial unsupported parent. They do not think that access and money should go together. Outside the judicial system, however, it remains the case that fathers who support their children within their means tend not to have access problems. Of course, what is within your means from your point of view and that of your spouse may in itself be a source of dispute and I should perhaps better state that spouses who support their children to the best of their ability tend not to have access problems. Occasionally people think that if they have broad agreement with their spouse, partner or other parent then they do not need a lawyer. You do need a lawyer to draft your agreement or to look over what you drafted yourself before you present to the court. Lawyers have a check list of what needs to be sorted and you may overlook something important that will cause you problems in the future. In addition, lawyers know the correct way to word agreements to make them stick, that is their profession. Penny wise would be pound foolish in this instance. Once the lawyer has looked over the agreement then you can always present it yourself in court if you wish. Often people fear that if they go to a lawyer he or she will upset the agreement. That is a little like not going to a Doctor because he/she might find something wrong with you. A lawyer will not necessarily upset the spirit of your agreement but may want to make revisions to wording or to add something overlooked. If you pick your lawyer with care as outlined above there should be no problem. It is also important to note that one lawyer cannot represent both parties even in a consent or settled case. It is worth remembering that most family cases do not go to court. The vast majority of cases settle. It is far better for families to try and organise their own affairs with the help of trained professionals than to have decisions imposed on them from outside. Start trying to resolve your affairs early and give careful consideration to all issues that need resolution. Above all conduct yourself with sensitivity to your children and remember the future well being of all concerned, not least your own.