Contemporary Community Views on

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Contemporary Community Views on Best Outcomes
for Children of Separating Parents
Dianne McKillop Deirdre Drake School of
Psychology, Edith Cowan University Perth, Western
Australia d.mckillop_at_ecu.edu.au
d.gdrake_at_ecu.edu.au
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Context

• changes in family structures, processes, and
  functions are a strong feature of the contexts in
  which children develop in the 21st century. 
  Changes in social structures, attitudes, and
  beliefs are also rapid and profound (Jan Pryor,
  2005).
• Investigating social perceptions of the legal
  principle the best interests of the child (BIC)
  as it relates to decisions about child residence
  and contact.
• Contemporary family structures can make such
  decisions even more complex, e.g., re-partnering,
  reproductive technologies that have led to
  different social and biological roles.
• Decisions, and perceptions of decisions, impacted
  by
• legislation (e.g., s60B and s68F of the FLA)
• conventional wisdom (e.g. blood is thicker than
  water and a childs place is with its mother)
  
• strong emotional responses generated by family
  and child issues in the parties involved and in
  sections of the public
• occasionally, by case law (e.g., re Evelyn).

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Purpose and Aims
There is an imperative to look at some key areas
of Australian family law and inquire whether they
might have the potential to generate a sense of
unfairness because they may not conform to what
many people think is right (Chisholm, 2001, p.
4). Purpose to examine social perceptions of
the best interests of children in the context of
the dissolution of four different family
circumstances where residence and contact is in
dispute. Aims to examine the publics
reasoning about residence and contact in cases
involving issues that arise in contemporary
families and on which courts and the public may
differ.
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Method

• 136 participants (randomly selected from Perth
  metropolitan area)
• 45 male, 83 female
• 92 partnered, 36 no partner
• M age 47.85 (range 18 74)
• M SES moderate (range low very high)
• 55 had either a trade or an u/grad degree
• random assignment to experimental groups
• each participant responded to four scenarios
• task was to choose a residence/contact
  judgement and comment on reasoning

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Scenarios

• Scenarios A and B concerned biological and
  social parenthood.
• Scenarios C and D involved parental worthiness.
  

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Scenario AStep-parent Scenario

• Skolnick (1998) argues that US Courts privilege
  biological ties over social relationships but
  that this may be at odds with public reasoning.
• Scenario A asked participants to consider whether
  a child who had been living with a biological
  parent and a step parent for a number of years
  should continue to live with the step parent
  after the death of the biological parent or be
  transferred to live with the (non-custodial)
  biological parent, with whom the child had had
  little prior contact.

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Scenario A one example Mr and Mrs Smith were
married for several years in the early 1990s. A
daughter, Sarah was born during the marriage but
the couple separated when she was one year old.
Mrs Smith married Mr Brown when Sarah was two and
he became her step-father. He was very good with
Sarah and they formed a happy family. Mr Smith
had very little to do with Sarah after Mrs Smith
remarried. However Mrs Smith died of cancer when
Sarah was 9 years old. Mr Smith then applied to
the court for an order that Sarah be sent to
reside with him Mr Brown wants her to continue
to reside with him. How do you think the
Court should decide this case?(please put a mark
on the line below to indicate your view)
Sarah should reside with Mr Smith.
Sarah should reside with Mr Smith, some contact
with Mr Brown.
Sarah to divide her time equally between the two
households
Sarah should reside with Mr Brown, some contact
with Mr Smith.
Sarah should reside with Mr Brown.
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Scenario AResultsStep-parent Scenario
Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact
Biological parent only Biological parent, contact with step parent Equal residence Step parent, contact with biological parent Step parent only
responses responses responses responses responses
0 7.5 6.0 85.0 1.5
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Scenario AComments

• Step-parent is the only father the child has
  known. (female, 43)
• Biological parent has until now shown little
  interest (male, 45)
• Continuity for the child. Child is too young
  to decide.some contact allows the potential for
  a relationship with biological parent to grow.
  (male, 52)
• Biological parent did not know the child and
  forfeited childs affection by choice. (female
  56)
• It was bad enough for the child to lose
  deceased parent she should stay with her
  step-parent whom she knows and who wants her
  she should however get to know her biological
  parent. (female, 65)

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Scenario AStep-parent Conclusions

• Gender of parent and gender of child were
  irrelevant to the residence decision.
• There was no residence preference for the parent
  who was the same sex and the child.
• Overall results were at odds with Skolnicks
  (1998) assertions of preference for biological
  parenthood in US Courts.

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Scenario BSurrogacy Scenario

• In 1998, the full court of the FCA ruled that a
  woman (S) who had agreed to carry a child for a
  friend (Q) (i.e. in a private surrogacy
  arrangement) should have custody of the
  17-month-old child who, up until then, had been
  living with the friend (Q) and her husband since
  birth.
• Scenario B examined the competing claims of
  surrogate versus adoptive parents. It was
  specifically based on this case, Re Evelyn
  1998 FamCA 55 (15 May 1998).

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Scenario B one example Mr and Mrs D had been
married for seven years when they went to see a
medical specialist about the fact that they were
having trouble conceiving a child. Tests showed
that they would not be able to have a baby
together and they started to think of trying to
adopt a child. But then Mrs T, a friend Mrs D
had known since before she was married, offered
to have a baby for them. Mrs T felt sorry for Mr
and Mrs D. She was married with three children of
her own and her husband agreed that it was a
good idea. So Mrs T carried and gave birth to a
baby girl, Helen, who was conceived through the
combination of Mrs Ts own egg and Mr D's sperm.
Therefore, Helen was the biological daughter of
Mrs T and Mr D. Mr and Mrs D stayed with Mr and
Mrs T for the birth and for a week afterwards
before taking Helen back to their own home in
another State. When Helen was 10 months old Mrs T
decided she had made a mistake and travelled to
the Ds home to take Helen back. The Ds want to
keep Helen. How do you think the Court should
decide this case?(please put a mark on the line
below to indicate your view)
Helen to live with the Ts, no contact with the Ds.
Helen to live with the Ts, some contact with the
Ds.
Helen to divide her time equally between the two
households
Helen to live with the Ds, some contact with the
Ts.
Helen to live with the Ds, no contact with the Ts.
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Scenario BResultsSurrogacy Scenario
Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact
Surrogate parents only Surrogate parents, contact with adoptive parents Equal residence Adoptive parents, contact with surrogate parents Adoptive parents only
responses responses responses responses responses
3.8 5.3 3.1 46.6 41.2
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Scenario BComments

• An agreement was made. You cannot take a baby
  from Mrs D who has bonded and been a mother
  (female, 30)
• Mrs T made the decision in the beginning. There
  can be no change (female, 53, original
  underlining)
• Mrs T offered to have the baby knowing that she
  wouldnt be able to keep her.Mrs T waited 10
  months before she took any action. (male, 26)
• The Ts already have 3 children. They made this
  agreement and should be thinking of the childs
  best interests. (female, 47)
• She agreed originally to have the child for her
  friend and therefore should stick to her original
  agreement. (male, 60)

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Scenario BSurrogacyConclusions

• The four possible combinations of whose genetic
  material produced the child had no impact on the
  decision.
• In Re Evelyn, the full court of the Family Court
  of Australia ruled that the child should reside
  with the (surrogate) biological mother and her
  husband.
• Therefore, these findings are in direct
  contradiction of that decision.
• Once again, the presence of a psychological
  parenting relationship was viewed as in the
  better interests of the child than a purely
  biological relationship.
• There was a strong emphasis on the binding nature
  of the original agreement.

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Scenario CAffair Scenario

• Parental worthiness.
• Moloney (2000), in the context of examining
  gender biases in judges reasoning, argued that
  men are granted residence of their children in
  contested cases where women are seen to be
  blameworthy in some way.
• Scenario C involved a parent who had an
  adulterous affair, leaving the marriage to set up
  a new household with his/her lover.

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Scenario C Mr and Mrs P have been married for 12
years and have two daughters. Mr P has always
thought that the marriage was a happy one,
however Mrs P has been secretly having an affair
with a family friend (Mr J) for the last 12
months and has decided to leave Mr P to live
permanently with Mr J. Mrs P and Mr J go away on
a holiday together for several months and, when
they return they move in together. Mrs P now
wants the girls to live with her. How do
you think the Court should decide this
case?(please put a mark on the line below to
indicate your view)
Girls to live with Mrs P, no contact with Mr P.
Girls to live with Mrs P, some contact with Mr P.
Girls to divide their time equally between the
two households
Girls to live with Mr P, some contact with Mrs P.
Girls to live with Mr P, no contact with Mrs P.
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Scenario CResultsAffair Scenario
Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact
Leaving parent only Leaving parent, contact with left parent Equal residence Left parent, contact with leaving parent Left parent only
responses responses responses responses responses
0 1.6 28.9 68.0 1.6
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Scenario CComments

• Short duration of relationship of leaving
  parent and new partner. (male 34)
• The children have been brought up in a happy
  environment and both parents love them. (male,
  45)
• better to leave children in their own homes
  where they are settled and happy they are not
  property to be fought over! (female, 46)
• Leaving parent decided to leave knowing the
  implications of such a decision. (female, 60)
• Leaving parent cant have his cake and eat it
  too. (female, 52)
• Children will still need their leaving
  parent. (female, 35)

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Scenario CAffairConclusions

• The parent who had the affair was seen by some
  to be less worthy for not sublimating his/her
  needs or desires for the sake of the children.
  However, almost nobody thought that the left
  parent should have sole residence and, once
  again, the gender of parent or child was not
  relevant.
• Stability of residence and parenting was seen as
  most important for the children.
• Support for equal residence (28.9) interesting
  in light of debate on a rebuttable presumption of
  shared parenting.

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Scenario DBusy Parent Scenario

• Parental worthiness.
• Moloney (2000) cited the following example of
  gender, blameworthiness, and residence Women can
  be regarded as unworthy parents for failing to
  put their childrens interests above their own
  (e.g., having a career). Conversely, men are
  assumed to want to work full time but support
  available to them in a care-giving role (e.g.,
  from a new partner or mother) is looked on
  favourably.
• In Scenario D, one of the separating parents has
  little time to spend with the children but has
  family support the other has always had more
  day-to-day involvement in parenting.

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Scenario D Mr and Mrs Miller have been in a
relationship for 9 years and have two sons. Early
in the relationship they both worked full time,
however following the arrival of the children Mr
Miller has worked only part-time. He has had by
far the most involvement with the boys as Mrs
Miller has a demanding job and is also studying
for further qualifications. The Millers
relationship has been increasingly unhappy in the
past year and has now broken up with quite a deal
of ill-feeling between them. Both parents want
the sons to live with them. Mr Miller says that
the children belong with him because Mrs Miller
does not have the time to devote to them. Mrs
Miller argues that although her job is demanding
she has the full support of her parents who are
retired and can help out when necessary. How do
you think the Court should decide this
case?(please put a mark on the line below to
indicate your view)
Boys to live with Mrs Miller, no contact with Mr
Miller
Boys to live with Mrs Miller, some contact with
Mr Miller
Boys to divide their time equally between the two
households
Boys to live with Mr Miller, some contact with
Mrs Miller
Boys to live with Mr Miller, no contact with Mrs
Miller
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Scenario DResultsBusy Parent Scenario
Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact Judgements about residence and contact
Busy parent only Busy parent, contact with more involved parent Equal residence More involved parent, contact with busy parent More involved parent only
responses responses responses responses responses
0 0 32.8 66.4 0.8
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Scenario DComments

• Continuity for the children, least disruption to
  their lives (female, 53)
• Involved parent has been the primary
  care-giver in this situation and the children
  should stay with this parent (female, 46)
• Neither parent has really done anything wrong.
  (male, 26)
• Involved parent shows commitment. (male,
  47)
• It seems both parents have equal rights to the
  children, after all, presumably busy parent has
  been working so hard for the good of the family.
  (female, 69)
• Kids need contact with both parents. (female,
  31)

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Scenario DBusy ParentConclusions

• Again, no gender bias was demonstrated in
  results.
• Rather than the busy parent being seen as less
  worthy for not sublimating his or her needs or
  desires for the sake of the children, the
  decision criteria appeared to be stability and
  continuity.
• Again, there was support for shared parenting.

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Conclusions
There was no gender bias in any of these
decisions. Responses to the first two scenarios
indicate that participants valued psychological
parenting relationships over purely biological
ties. This suggests that public reasoning is
inconsistent with judicial reasoning in cases
such as that of the Australian High Court in Re
Evelyn and those (in the US) described by
Skolnick (1998) as reflecting a new biologism
(and that blood is not thicker than water). A
majority of participants would grant residence to
a parent whose spouse had left them and to a
parent who had more time available to spend with
children in order to ensure continuity of care
rather than to punish a bad parent. In these
parent worthiness scenarios there was also
support for shared parenting that was not evident
in the biological vs social decisions.
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Decision Aspect N Mean SD
protect phys harm 131 136.47 9.69
protect emotnl harm 131 132.47 12.76
keep sibs together 136 125.16 21.62
prov for emotnl needs 131 124.86 16.86
effect of sep 136 117.75 26.76
wishes of the child 133 117.08 27.52
moral behvr of parent 132 116.70 28.32
prov intell dev needs 130 114.97 26.04
time to spend 128 104.05 32.77
if no time help 127 104.43 26.85
time spent b4 sep 130 88.35 33.82
provide fin needs 130 87.79 34.59
new stable relationship 131 79.21 41.47
sex rels since sep 130 71.32 43.83
live with mother 127 60.58 34.47
blame for sep 134 48.00 38.60
live with father 128 47.77 32.01
parent same sex 128 31.23 31.46
Valid N (listwise) 117
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