Care of children : families, dispute resolution and the Family Court

Abstract

This study explored family members' experience of, and satisfaction with, New Zealand Family Court dispute resolution processes concerning children's care arrangements following parental separation. A qualitative method was employed, using individual interviews with 22 parents and 8 children from 15 families, in three court districts, during 2001-2002. Follow-up interviews were also conducted with the parents one year later to assess the factors affecting compliance with their agreements and court orders. Focus groups were held with 16 Family Court professionals (lawyers, counsellors, specialist report writers and judges) in two cities to obtain their views on the family members' perspectives. Sociocultural and ecological theories, the sociology of childhood and the UNCRC provided the conceptual basis for the research. Historical developments in child custody and divorce laws, which provided the impetus for the establishment of Family Courts internationally, have also been reviewed. Each parent was legally represented, with 87% of the families also attending Family Court counselling and judge-led mediation conferences. Defended hearings occurred in 27% of the cases. Family members reported a broad range of views about their legal and court experiences. They valued their interactions with professionals who took an interest in them and their children, provided clear information and support, let them have their say, and competently managed the dispute resolution processes. Dissatisfaction was frequently expressed with the conduct of ex-partners and with professionals' styles of practice, particularly where these involved erratic or uncompromising attitudes and adversarial tactics. The desire to respond to what was written in an ex-partner's affidavit escalated some parenting disputes onto a litigation pathway. Delay, cost, gender bias, lack of enforcement of court orders, and inadequate opportunities to feel heard, understood and respected were also identified as problems associated with Family Court proceedings. Earlier access to a wider range of information, support and conciliation services was recommended, together with more post-order explanation and support. The professionals wanted a stronger emphasis on the Family Court as a court of law, rather than a social agency. A clearer demarcation between the court's conciliation and adjudication functions was considered necessary to avoid clients having unrealistic expectations of the Family Court. Family members' therapeutic needs were important, but thought best met within community-based agencies. The children were aware of their parents' court proceedings and most wanted the opportunity to play a more direct role in the decision about their future living arrangements. Significant or modest changes had occurred in 60% of the families by the time of their follow-up interviews. Some changes had led to a reversal in the original care arrangements, while others had impacted upon the frequency of a child's contact with their non-resident parent. A new conceptual model for the resolution of post-separation parenting disputes has been developed. This integrates the theoretical framework underpinning the study with the international research evidence on the impact of parental separation and the principles and practices of an effective child-inclusive and culturally responsive family law system.