Children’s Participation in Divorce

Discussion paper no. 10, Australian Institute of Family Studies, 1983

Don Edgar and Margaret Harrison

Paper presented at the Conference of Marriage Counselling Organisations held in Canberra, 16 February 1982, the theme of which was 'Counselling children through divorce'.

Incidence of Children in Divorce

Since 1976 a total of nearly 380 000 children have been involved in their parents' divorce. That figure includes only children under the age of 18, so it is an underestimate of the real total. Although an increasing number of divorcing couples are childless (38.4 per cent childless in 1982 compared with 31.7 per cent in 1974), there is an average of two children affected in couples with dependent children. Those with three or more children have dropped from 19.7 per cent of divorces in 1974 to14 per cent in 1982, but that still means there were over five thousand large families whose parents divorced in 1980 alone.

It is known too, that 7 per cent of couples divorced since 1976 had been separated for eight or more years (900 of them prior to the year 1949) and a further 42 per cent had been separated between two and six years before the divorce (Edgar, Prolisko and Harrison, 1982). All divorcing couples had (by law) to have been separated at least 12 months before filing for divorce, so we can estimate that there are, right now, at least 40 000 children whose parents are separated prior to an official divorce, plus several more thousands of children whose parents have 'split up' and are on the slide towards divorce within a year or so.

The approved marriage guidance and counselling agencies in Australia deal with about 30 000 couples each year, but claim that they are reaching only a minority of couples whose marriages are breaking down. Even of those who come for counselling, some 30 per cent had already split up, a factor which militates against reconciliation the longer they live apart (Wolcott, 1981: 9-10).

Children as Active Participants in Family Life

The theme of this conference, 'Counselling children through divorce', seems to accept the outcome as inevitable or as already settled; the parents have split up and children must be counselled to adjust to that situation. We want to take a slightly different approach and challenge marriage counsellors to think not only about the needs of children but also about their approach to marriage conselling as a whole. What does 'participate' mean for children in the context of divorce?

First, children participate as family members in the social interaction that makes a family 'work' or not work. As we shall see they can be both passive observers and active participants.

Second, children may see the signs of marital conflict or breakdown or they may be blissfully unaware that anything is wrong until the final storm breaks. That is why the Family Law Act adopts a somewhat paternalistic role in protecting children (as the most vulnerable members of a broken relationship) from becoming pawns in an adult struggle. Research overseas and our own observations here show that the interests of adults and children often diverge when a marriage breaks down. Wallerstein and Kelly (1974) have described how parents involved in marital problems are at their most self-absorbed and irrational just when their children need their attention and care. Whereas adults may want to make a clean break with an ex-spouse, children frequently want continued contact with that person as a parent, even when he or she has been off-hand or even antagonistic to them. Interestingly, the Family Court's conselling provisions start with the child, a point to which we shall return, in contrast to the usual marriage guidance approach to marital discord.

Third, a child's response to parental dissension may be a sense of powerlessness or a determination to interfere, as a conciliator, or as a protagonist, on one side or the other.

Fourth, children are affected whether they like it or not by separation and divorce, psychologically, emotionally, socially and economically. Their social status changes with that of their parents and their social roles and power positions within the family are altered significantly.

Fifth, their age affects their legal rights and the weight given to their own views of what is 'in the best interests of the child'. This issue will be discussed in more detail later.

So there must be various stages or points of intervention for 'counselling children through divorce'. Who helps the child where a parent has just walked out? Is it merely a 'family' problem or should there be agencies (at school? the church? the local doctor's surgery?) which children can approach without fear or stigma?

What part does a marriage counsellor play with children of a person who comes in for guidance? In 1979-80, out of a total caseload of 29 481, in which most clients coming for guidance received a number of interview-consultations, 45 829 interviews were with wife alone, 21 631 were with husband alone, and 38 983 were joint interviews. This represents quite a significant shift in emphasis on joint couple interviewing, rising from 11.9 per cent of all interviews in 1960-61 to 29.3 per cent in 1972-73 to 36.6 per cent joint interviews in 1979-80 (Wolcott, 1981).

But where are the children? How many joint family sessions are being held? The statistics lump them together with relatives as 'other' interviews. How often is a joint session held between a desperate parent and the child who is causing marital and family strife? Where does family therapy fit into this picture and why is it not funded officially other than in the pilot project being run by the Marriage Guidance Council of New South Wales? Why assume the couple alone can sort things out?

These questions are posed for two main reasons. One is the obvious but oft-forgotten fact that marital breakdown occurs in a family system which in most cases includes children. Sociologically and psychologically those children are active participants in the family system, not passive appendages that have no influence on it. The second reason is the fact that children have (or should have) rights to protect themselves against a corrosive family system, to assist in keeping it together if possible, to be consulted on what they see as the cause of problems and to advise on what is best for them at every stage of the conflict and separation process.

When parents divorce they are severing not only their own agreement, but also all those complex links that make for alliances and coalitions within the family. Notice that the terms used are those of 'power', 'exchange' and 'conflict', not the less exact and often misleading terminology of consensus, mutual adjustment, communication and understanding. Not that such processes are not vital to family interaction and well-being, but they hide what is really going on in social interaction: that is, a process of adapting behaviour so that one has control over a particular context.

Learning from birth, through infancy to competent adulthood, is never a passive process of being moulded to fit in; it is an active development of a social repertoire of behaviours that puts the child (or fails to put the child) in control of each new situation, each new environmental context that is faced. Some people develop a repertoire that makes them competent, in control within social limits; others go through a vicious cycle of deprivation, ignorance and incompetence that makes them powerless in almost every social setting (Brewster-Smith, 1968; Edgar, 1980).

There is now a wealth of research evidence showing that babies control the 'caretaker' parent and his/her behaviour as well as the other way round. No parent would ever have doubted this, but theories of socialisation have only recently caught up with the two-way process by which life agreements are negotiated (Rheingold, 1969; Lamb, 1976; Hartup, 1978). Researchers have found that parents react more permissively to the child of the opposite sex (Rothbard and Maccoby, 1966), that pre-school children can modify the behaviour of their teachers, with dependent children being more successful in claiming attention from nurturant adults but getting rebuffs from the less gullible adults (Yarrow, Waxler and Scott, 1971), and that, even across cultures, peer-group relations affect aggression and pro-social behaviour more than parents do, while it is in interaction with parents that the child acquires dependent and intimate behaviours (Whiting and Whiting, 1975). Research has finally exposed the myth of the passive child, a myth that most parents could never quite believe.

This paper is suggesting that much of the above should have been obvious and that research should always have looked at the active role of the child in family socialisation. It should have been equally obvious to marriage counsellors that children play an active role in families and in the growth of marital difficulties between parents and that it is not enough for marriage counsellors to simply advise the parent on what to do or what to say, assuming (along with the researchers) that behaviour can be modified in a uni-directional way.

Role of Children in Marital Satisfaction

The literature usually refers to family alliances and coalitions in more neutral terms as 'diads' and 'triads' (Rollins and Galligan, 1978). Where only one child exists there are three diads (Mother-Father, Mother-Child, Father-Child) so only a few possiblities are presented for ganging up against one another. But with two children there are six possible diads and four triads; Mother, Father and Child 1 can gang up against Child 2 (the classic scapegoating situation); or the parents with Child 2 can gang up against Child 1; or Mother can get both children on her side against Father; or Father can turn them against Mother; the two children can cause joint trouble for their parents or one can side with Mother and the other with Father. The possibilities for cooperation, conflict, withholding information, missing out on what is happening and manipulating others in the situation are endless, particularly where the marital partnership is a bit shaky.

So what is the evidence about the part children play in marital satisfaction/ dissatisfaction? In terms of marital satisfaction, children seem to be a major source of gratification. Various studies have shown the desire to have children to be the main reason why people marry in the first place (Feldman, 1971); that most parents do not regret having had children (Freedman and others, 1959; Winch, 197 1); that two-thirds say life would be worse without children (Busfield and Paddon, 1977); and the major life change that parenthood brings is the positive one of 'becoming adult', or of having 'responsibility' at last (Hoffman and Manis, 1978).

In contrast to these positive findings there is an equally exhaustive set of findings that children have a disruptive and negative effect on marital satisfaction. The arrival of the first child demands adjustments of 'crisis' proportions for a majority of young couples (Le Masters, 1957), especially for those who had not planned the first pregnancy (Dyer, 1963). Hobbs claims (1965; Hobbs and Cole, 1976) that there is disruption but not crisis for most couples. There is evidence that highly satisfied couples suffer most loss of satisfaction after the first birth, contradicting the notion that it is the already poor marriages that fall apart when a child arrives (Feldman and Rogoff, 1968; Feldman, 1971). Other researchers have found no loss of satisfaction except for having less spouse companionship (Ryder, 1973); or that for couples who were poorly satisfied from the start, children later on are the only source of mutual satisfaction they have, and, in that sense, have strengthened the marriage. Waldron and Routh (1981) replicated Ryder's study and found that wives' marital adjustment scores were significantly lower following the first birth. The decrease related to overall happiness and to less satisfactory resolution of disagreement between husbands and wives. The lowest levels of marital satisfaction are found where couples have fewer or more children than they desired (Christensen, 1968), had unplanned children, or regretted having had children before completing other tasks such as a college degree.

There is no evidence whatsoever that large numbers or close spacing (density) of children is either more or less satisfying (Hurley and Palonen, 1967; Figley, 1973); nor is there any acceptable evidence that younger versus older children cause more marriage problems. Several studies suggest a U-shaped curve of marital satisfaction - being highest before children come along, dropping (especially for women) from infancy through pre-school and then improving as the oldest child enters school, children mature and leave home (Burr, 1970; Rollins and Feldman, 1970; Spanier, Lewis and Cole, 1975; Smart and Smart, 1975).

However, the amount of variance explained in marital satisfaction by such studies is very small (4-8 per cent), their samples are often unrepresentative and it is 'suspect[ed] that only a small percentage of married couples actually follow this [U-shaped] pattern' (Rollins and Galligan, 1978). Moreover, samples of married couples obviously have lost those already divorced, and such studies seem stubbornly to ignore external social structural factors such as family finances, employment of the wife or unemployment of family members, and peer group or reference group changes as women and men enter new career phases which offer new attractions and barriers to divorce (Levinger, 1976).

Cherlin's (1977) study showed that the presence of pre-school children is a deterrent to separation and divorce, and Eshleman (1978) found that the more children a couple had, the longer the interval between marriage and separation, but writers such as Hicks and Platt (1970) conclude that 'the instrumental role of the husband (i.e. his income) is more crucial to marital happiness . . . than any other single variable'. When asked about whether they were 'thinking about divorce' a large sample (n= 1382) of American men and women admitted they were thinking about divorce more often where they had pre-schoolers and where they had been married at age 19 or younger (Booth and White, 1980). So while young children may be a deterrent to separation and divorce, they clearly cause sufficient stress to make people think about divorce. The fact that three-fifths of all divorces in the United States involve at least one child 'dispels the myth that children prevent divorce' (Eshleman, 1978:369).

Hoffman and Manis's study does not entirely support the findings of the major study by Campbell, Converse and Rodgers (1976) in which couples with young children described more tensions and anxieties than at any other stage in the family life cycle, with lack of money and lack of mutual understanding being the main reasons given. Hoffman and Manis agree that both marriage and parenthood are more stressful in the early stages, but claim that both marriage and parenthood are more intense and salient then and are also, in many respects, a greater souce of pleasure (Hoffman and Manis, 1978:174). Most couples reported a greater closeness through sharing child care tasks and concerns and a common goal. The most common reasons given for the view that children move couples further apart are disagreements over child-rearing, less time together and a shortchanging of the wife role because of too much attention being given to mothering. Such polarities led Hoffman and Manis to conclude:

Children restricted the couples' freedom, but they were almost unanimously seen as providing enormous satisfaction, and both views were expressed particularly during the early years when the children were young. When the children reached school age, the mother was likely to return to work, and the restrictions of parenthood were lessened. By adolescence, the restrictive effects were reduced still further, but the worries about the children's safety and their future increased (1978:24).

In the only large study in the United Kingdom of this kind, Thornes and Collard ( 1979) found that pre-marital pregnancy is related strongly to reports of early marital difficulties, shorter marriage duration and increased divorce rates. These findings confirmed those of Bumpass and Sweet (1972), Bacon (1974) and Furstenberg (1976) that the divorce is more likely when a child is conceived prior to or very early in the marriage. So the impact of having children on marital stability is clearly not the fact of having children in itself but rather the conditions under which those children are conceived. In sum, marital stability is differentially affected where there is

Unfortunately, none of this research really addresses the question for which we all want an answer: to what extent do children participate in the disruption of marriage? For that we have to turn to clinical studies, family therapy experiences and our own gut-level best-guesses.

What we can say is that children are important to married couples; overall they are a source of satisfaction despite the added strains they cause, but they do not stop separation or divorce. There is some evidence that divorcing couples still want to maintain lifelong contact with their offspring, though they may be distracted initially by their personal needs; and that despite parent-child conflict and increasing numbers of split or 'reconstituted' families, there is 'a growing body of data on adult kinship interactions that suggest that there is a lifelong persistence of some parent-child bonds in the face of geographic separation, socio-economic differences and even value conflicts' (Bengston and Troll, 1978:224). In other words, 'blood is thicker than water'. However, there is growing counter-evidence that 'access' parents over time reduce their contact with children (Smiley and Hirst, 1980) and tend to give up after one or two years (Wallerstein and Kelly, 1974).

Kanoy and Miller (1980) sum up the various relationships using Levinger's ( 1976) notion of 'barriers and facilitators' of divorce, in a model that at least has the virtue of testability.

Figure 1: Children's impact on the parental decision to divorce

Figure 1: Children's impact on the parental decision to divorce, described in text

Source: Kanoy and Miller, 1980.

Our conclusion from all of this is that children are involved in their parents' affairs and therefore children must be allowed the right to preserve those blood ties or at least to understand why their parents have decided to sever the marriage bond that produced them.

The Legal Rights of Children of Divorcing Parents

Those involved officially in the process of marriage preservation and dissolution have to face the rights of children. It is ironic that the Family Court of Australia, so often accused of making divorce 'easy' and thus of 'causing' the unhappiness of thousands of children, asserts the 'best interests of the child' more vigorously than do those at the supposedly 'preventive' end of marriage counselling. Though not without its faults, the Family Court system at least attempts to involve children and to protect their best interests against parental manipulation.

Historically in common law the father was automatically the custodian of his legitimate children. When this principle was at its height there was no need for custody battles - the law was certain even if it could frequently be accused of being unjust. Gradually throughout the early part of this century the mother (especially of a child of tender years) came to be considered the most appropriate caregiver, unless she had disqualified herself by reason of her conduct. The Family Law Act altered this by declaring that, subject to a court order to the contrary, each party to the marriage is a guardian of a child and both have joint custody. This does not, of course, mean equal time spent with each parent, except in a minority of cases. It means parents have equal rights in decision-making about the child's schooling, religion and so on and thus encourages dual parenting rather than half-parenting for the child.

As society has become more complex and lifestyles more varied it becomes more difficult for judges to decide on the facts before them who should win or lose custody. We say win or lose because the lack of fault in our divorce law has not reduced the magnitude of the contest that gets under way when two parents do battle over their children - and those parents' various capacities to 'parent' must be assessed if the court is to carry out its mandate with respect to the children.

The rights of children to participate in the decision-making process about their welfare has been espoused by the Family Law Act in two particular areas. One is the wishes of the child. Under the Act as recently amended, the court is required to consider any wishes expressed by the child and to give these wishes such weight as the court considers appropriate in the circumstances of the case. Previously the court could not make an order contrary to the wishes of a child of 14 and over unless it was satisfied that special circumstances existed. The recent amendments also enable proceedings to be instituted by or on behalf of a child of the marriage against one or both of the parties to the marriage with respect to the welfare of the child.

The second area is that of separate representation of the child. Section 65 of the Act (as amended) provides that in any proceedings under the Act in which the welfare of a child of the marriage is relevant the court may order that the child be separately represented. This order may be made as a result of the court's own motion or on the application of either the child, an organisation concerned with the welfare of children, or any other person.

Such representation is invariably funded by the appropriate Legal Aid Commission. Separate representatives are usually ordered only where there is great bitterness between the parents and their attitude to each other is likely to obscure the evidence regarding the welfare of the child. Such a representdtive may have a valuable role to play when the arrangements proposed for the children by the parents are inadequate in the circumstances, and a third alternative may be offered. Here again Family Court counsellors play an invaluable role. Often they have seen the child beforehand and can give advice while staying free of involvement in the adversary situation.

Yet counsellors are restricted in their role with children through the divorce process because they see only those cases where custody or access matters are in dispute. At least 80 per cent of all Family Court cases involving children have no court contact at all. This follows from the Family Law Act's intention to avoid directives and instead to encourage conciliation in a helping court atmosphere. In such cases the parents - sometimes unilaterally, sometimes in conjunction with the children - make arrangements for the children tacitly or after private discussions. The role of the courts in these situations is to ascertain and declare its satisfaction with the arrangements made for the children's welfare.

The arrangements have to be described in the divorce application form. This provision has been frequently criticised as being a hollow one, as few judges query the suitability of the arrangements (under Section 63 of the Family Law Act) or even find out whether they are still the same as they were when the application was filed - in fact, the entire divorce hearing may only take a couple of minutes. It is also quite often the case that the arrangements proposed are the only feasible ones in the circumstances and therefore the judge is limited in the protection he or she can offer the children. In those rare cases where a judge is unsatisfied with the arrangements the decree nisi does not become absolute.

Role of Family Court Counsellors

The Family Law Act established the court counselling service which is primarily directed towards the well-being of children and the elimination, where possible, of court hearings. We tend to forget how revolutionary this service is, compared to the Australian system prior to 1976, and the current system in the United Kingdom (Murch, 1980) and in many American states where no such integration of psychologists, social workers and legal staff exists. The counsellors are officers of the court, and their objectivity and experience are important characteristics of the service.

One of the most successful roles played by court counsellors is their conduct of conferences with the parties where the welfare of the children is in issue. Depending on client-staff ratios, courts order such a conference immediately it appears that a custody application order will be defended. The philosophy behind this is that attitudes become polarised the longer a dispute exists. Such conferences are completely confidential and they frequently result in consent custody and access arrangements being made. Counsellors are also called upon to conduct 'reportable' conferences and prepare a family report which may be used in a subsequent court hearing. These are set in motion where a judge orders that certain information (such as the wishes of a young child) be obtained by a counsellor and the information used to advise him or her. The information is therefore not of course confidential. The debate between the respective value of confidential reports as opposed to court ordered ones is an ongoing and difficult one. However, in 1979 the Chief Judge of the. Family Court decided that priority was to be given to nonordered counselling, for which 60 per cent of available staff was to be used. It is felt that resolution in a confidential setting is more appropriate than presentations in a court setting. In addition, ordering a 'report' can cause considerable delays before a hearing and both child and parents are left in a limbo situation.

Recent amendments to the Act require the parties to proceedings which involve the welfare of children to attend a conference with a court counsellor. No court will make a final order (except where there is consent between the parties) without prior counselling, unless special circumstances exist. As has been said, contested cases are fortunately a small minority of cases involving children.

The amended Family Law Act contains definitions of guardianship and custody and requires the court to take certain matters into account in proceedings with respect to the custody, guardianship or welfare of, or access to, a child of the marriage.

A person who is the guardian of a child has the responsibility for his/her long-term welfare. This includes the powers, rights and duties vested by law in the guardian of a child, except for the right to have daily care and control and the right and responsibility to make decisions concerning the daily care and control of the child.

A person who has or is granted custody of a child has the right to have daily care and control of the child and the right and responsibility to make decisions concerning that daily care and control.

The relevant matters to be taken into account when determining custody, guardianship and access are:

Nevertheless, the court still has a wide discretion to make orders, provided it always regards the welfare of the child as the paramount consideration.

What has been said should indicate that the Family Court has not only tried to recognise an active and valid role for the children of divorce; it has embodied this principle in its operations and hopes to extend it both in the law and in practice.

Conclusion

The challenge to marriage counsellors is clear. Their job is to advise and guide those whose marriages are breaking down. But marriage is only one element of the family system. Children are both recipients of and active participants in the family and therefore in the marriage. Marriage counsellors must find ways of turning their thoughts and procedures in a direction which will deliberately involve the children. Perhaps family counselling should be the name of the game.

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