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Family Law and the Indissolubility of Parenthood

Family Law and the Indissolubility of Parenthood

Author: Patrick Parkinson
Publisher: Cambridge University Press
ISBN: 9781107614338
Published In: January 2013
Format: Paperback , 302 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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There are few areas of public policy in the Western world where there is as much turbulence as in family law. Often the disputes are seen in terms of an endless war between the genders. Reviewing developments over the last 30 years in North America, Europe and Australasia, Patrick Parkinson argues that, rather than just being about gender, the conflicts in family law derive from the breakdown of the model on which divorce reform was predicated in the late 1960s and early 1970s. Experience has shown that although marriage may be freely dissoluble, parenthood is not. Dealing with the most difficult issues in family law, this book charts a path for law reform that recognizes that the family endures despite the separation of parents, while allowing room for people to make a fresh start and prioritizing the safety of all concerned when making decisions about parenting after separation.

• Offers a major new contribution to the debates about the future of family law in the Western world

• Reviews and compares the experience of many different countries and shows how they are grappling with the same problems and how solutions are converging

• Offers new proposals for resolving the major conflicts in family law which rise above the gender war to offer another way forward

Preface	xi
Part One Family Law and the Meaning of Divorce	1
1. Family Law and the Issue of Gender Conflict	3
Fathers, mothers, and the gender war	3
The turmoil in policy about parenting after separation	8
The problem of trench warfare	9
The growth in litigation about parenting	9
Reframing the issues	12
The indissolubility of parenthood and limitations on autonomy	14
2. The Divorce Revolution and the Process of Allocation	16
The indissolubility of marriage	16
The emergence of no-fault divorce	18
Giving marriages a decent burial	21
The allocation of the children	22
The clean-break principle and the goal of self-sufficiency	25
Child support and parental separation	34
The breakdown of the allocation model and the emergence of the enduring family	36
The divorce revolution and the feminization of poverty	37
The gender war and the enduring family	39
Restructuring the family after separation	41
Part Two Parenthood in the Enduring Family	43
3. Redefining Parenthood after Separation	45
The movement toward joint custody in the United States	45
Parenting plans	47
Other linguistic formulations	48
Europe: The continuation of parental responsibility after separation	50
The meaningful involvement of both parents	55
Beyond custody	56
Resolving disputes about parenting decisions in the enduring family	57
The idealization of the postseparation family	61
The good divorce	63
4. Reasons for the Demise of Sole Custody	66
Changes in community attitudes toward parental responsibility	67
Pressure from fathers	69
The benefits of paternal involvement in the postseparation family	73
Fairness between parents	77
Children’s views on time with nonresident parents	79
The counterthrust – continuing the preseparation patterns of care	81
The rise of shared parenting laws	90
5. Shared Parenting: The New Frontier	91
The growth of shared parenting	91
Legislative support for shared parenting	97
The move toward equal time: Developments in the United States	99
The move toward equal time: Developments in Europe	101
Shared care in Australian law	104
Shared parenting and high-conflict families	112
Children’s views on equal time arrangements	114
Shared care and traditional parenting arrangements after separation	116
Part ThreeParents Forever? Issues about Postseparation Parenting	119
6. Violence, Abuse, and Postseparation Parenting	121
Patterns of violence within families	123
The relevance of domestic violence to decision making on parenting after separation	129
Intimate partner violence and legislation on postseparation parenting	133
Presumptions against custody	136
Presumption against unsupervised visitation	138
Differentiating between kinds of family violence	140
Current safety concerns	143
When familial relationships can no longer endure	145
Domestic violence: The need for a bifurcated response	147
7. Relocation	150
The dilemma of relocation	150
The conflict in legislatures and courts	153
Relocation: Between two meanings of divorce	157
Beyond polarization	162
Relocation and the best interests of the child test	164
Reasons for relocation	166
Should nonresident parents move?	169
Should new partners move?	171
Maintaining a meaningful relationship with the nonresident parent	171
The difficulties of contact	172
The burden of travel	174
Divorce, cohabitation, and the enduring family	175
The risks of relocation	178
Determining public policy on relocation	179
Part Four The Family Law System and the Enduring Family	181
8. Dispute Resolution for the Enduring Family	183
Mediation as an alternative to litigation	183
The paradigm shift in family dispute resolution	184
The Australian Family Relationship Centers	187
New approaches to in-court counseling services	193
Competition or partnership? Mediators, lawyers, and the court system	194
9. Adjudication for the Enduring Family	197
New approaches to adjudication	197
Denmark: The role of County Governors’ Offices	201
Reforming the adversarial system	202
Adjudication in families with continuing high conflict	205
Part Five Financial Transfers in the Enduring Family	209
10. Child Support and the Obligations of Parenthood	211
Maintaining and creating ties between parents	211
Child support and the divorce revolution	213
Nonmarital families and the indissolubility of parenthood	215
The public role in child support assessment and collection	215
Revenue recovery, supporting children, and parent-child contact	222
Devising formulas – the search for principle	225
The “costs” of children	228
The percentage of obligor income approach	229
The income shares approach	230
Community views on calculating the child support obligation	232
Child support and shared parenting	233
Child support and the interdependence of parents	236
11. Spousal Support and the Feminization of Poverty	238
The divorce revolution and the clean break	238
Role differentiation in the modern family	243
The economic consequences of separation and divorce for men	246
Justifying spousal support in an age of no-fault divorce	248
Reconceptualizing and reviving spousal support	250
Compensation, income sharing, and the decision to end the marriage	255
Spousal support as insurance	258
Spousal support and property division	259
The relationship between child support and spousal support	261
Should spousal support be limited to those who were married?	264
Diverging approaches and the meaning of divorce	264
Part Six The Future of Family Law	267
12. Between Two Conflicting Views of Separation and Divorce	269
Abandoning the Judeo-Christian view of marriage	269
Bolshevik Russia revisited	270
Wavering between two opinions	272
The challenge of experience	276
The irretrievable breakdown of divorce policy	277
Toward new policies for the postseparation family	278
Index	281

Patrick Parkinson
University of Sydney

'Must reading for anyone interested in family law and policy. Professor Parkinson offers a comprehensive and compelling cross-national analysis of legislative efforts to recognize the indissolubility of parenthood and to foster the parent-child tie after family separation.' Marsha Garrison, Secretary-General of the International Society of Family Law

'Parkinson has done a masterful job of identifying international trends in family law over the past four decades. Focusing on the gradual but dramatic shift in the meaning of separation and divorce for its participants, family law, government, and society, Parkinson writes with clarity, objectivity and balance, and the perspective of many years as a legal scholar, researcher, and family law reformer … The book makes a very significant contribution to the fields of family law and social science.' Joan B. Kelly, Ph.D.

'Family Law and the Indissolubility of Parenthood is the latest book by Patrick Parkinson who is a Professor of Law at the University of Sydney and a highly respected and internationally renowned expert on Family Law. Even by his own high standards this work is a tour de force. Its underlying thesis is that whatever the status of the relationship between partners before their separation, they are tied together by bonds of parenthood and that these bonds are more enduring than the ties that marriage alone involved. No serious scholar of Family Law can afford not to read it. It puts developments of so many jurisdictions into context, as well as pointing the reader to a wealth of research around the Family Law world. On top of this it is challengingly thought provoking.' N. V Lowe, Head of Cardiff Law School

'This interesting book is truly a solid piece of work at its best. It is indeed very thought-provoking and may benefit many kinds of readers. It is thus highly recommendable for anyone interested in post-divorce parenthood, especially since it is conducted in a comparative perspective.' Professor Eva Ryrstedt, Faculty of Law, Lund University