2. European Family Law Compared - Child custody and care arrangements when unmarried couples break up having no registered partnership

European law systems with regard to arrangements for children when couples break up and separate while unmarried and without a formally registered cohabitation or partnership arrangement – Comparative Private Law Research

Research ordered by the Dutch Ministry of Justice (*) and executed by Prof. mr. M.V. Antokolskaia and Mr. L.M. Coenraad of the Free University of Amsterdam, Amsterdam, september 2006

ABSTRACT

There is currently a Governmental Bill of the Act On Promoting Continuation of Parentage after Divorce and Responsible Divorce before the Second Chamber of the Dutch Parliament (Kamerstukken II 2004 - 2005, 30 145). Among other things, this Bill states that every divorce or registered partnership dissolution petition should include a parental plan. As of now, this Bill contains no parental plan requirement for the approximately 18.000 children whose unmarried or unregistered parents are currently involved in the termination of their relationships.

The purpose of this research is to provide comparative information for use in further discussions concerning whether the introduction of parental plan requirement is also feasible and workable in of informal relationship terminations between the parents.

Austria, Portugal, Serbia and Slovenia appear to be the only European countries currently requiring arrangements to be made with regard to children involved in the termination of informal relationships. Such arrangements are a formal precondition for the continuation of joint parental responsibility after the termination of the relationships in these countries.

According to Austrian law, when informal relationships end, agreement on a child’s residence is the only compulsory arrangement the parents are required to make with regard to their children, (art. 167 lid 1 j° art. 177 lid 2 ABGB). Because informal relationships can be ended informally in Austria, in most cases a judge would have no knowledge of such a termination. As long as a judge is not aware that the parents have failed to make a required arrangement regarding their children, the joint parental responsibility will simply continue on as it was, irrespective of whether the parents have, in fact, made such an arrangement. The Austrian legislature openly tolerates this form of automatic continuation of joint parental responsibility.

The requirement of making an arrangement with regard to children during this intermediary period is a lex imperfecta; therefore, all legal acts performed by the separated parents during this period are considered valid.

The judge can, of course, later discover that the parents have failed to reach a required agreement with regard to their child’s residence. This can happen, for instance, if the parents would have disputes later concerning the exercise of joint parental responsibility. In this case the judge would bestow sole parental responsibility upon one of the parents. Differing from The Netherlands, compulsory agreement regarding children is a formal requirement for continuation of joint parental responsibility in cases involving termination of parental relationships in Austria. However, the lack of the possibility to execute control over the making of such agreements compels the legislature to tolerate de facto automatic continuation of joint parental responsibility when the required arrangements have not been made.

According to Portuguese law, informally cohabiting parents whose relationships end are required to make arrangements with regard to their child’s residence, contact with the non-residential parent and child maintenance (art. 1912 jº 1905 van het Portugees BW). As in Austria, such an agreement is a formal requirement for the continuation of joint parental responsibility. As the termination of informal relationships is an informal matter, in practice a judge would almost never learn about it. In these cases, the joint parental responsibility simply de facto continues, without the legal requirement of making arrangement regarding children having been met. This situation can also be qualified as the toleration policy.

A question which arises is whether the legal acts performed by parents during this period of uncertainty retain their validity. There is, alas, no certain answer to this question. Our Portuguese respondents cautiously suggested that such acts later ‘may be questioned’.

If the judge later discovers that no arrangements with regard to children have been made and mediation fails to help the parents to come to an agreement, the judge, in the same fashion as in Austria, would grant sole parental custody to one of the parents. In exceptional cases parental responsibility can be granted to a third person or an institution.

According to Slovenian law, informally cohabiting parents who are separating are required to make an arrangement with regard to parental responsibility, education of the child, child maintenance, contact, child residence and providing the child with information (art. 105 MFRA). Durable cohabitation in Slovenia is legally equated with marriage. However, as in Austria and Portugal, ending an informal cohabitation takes place in an informal fashion. Formally speaking, the agreement prescribed by art. 105 MFRA is a formal requirement for the continuation of joint parental responsibility. However, in fact the same parental responsibility situation that had existed before the termination of the relationships simply continues. The competent authorities discover such terminations only if the parents themselves later ask the judge or the Center for Social Work to resolve their problems. Therefore it is possible to conclude that in Slovenia the requirements of the art. 105 MFRA with regard of cohabiting couples is also a lex imperfecta. The violation of this requirement is generally sanctionless.

Although it is not possible to control whether the informally terminating cohabitants fulfil the requirement to make an arrangement with regard to their children, the rationale behind this requirement is to avoid legal discrimination between marital and extramarital children. The requirement in question also serves to further equalise marriage and durable cohabitation.

Durable cohabitation according to Serbian law is also equated to marriage. Parents ending an informal cohabitation are required to make an agreement with regard to the future execution of their parental responsibility. The scope of such agreement is more limited than in Slovenia. As in Austria, the only compulsory item is the arrangement regarding the child’s residence (art. 76 (2) FA).

However, such an agreement is a formal requirement for continuation of joint parental responsibility; in fact the situation with parental responsibility before the termination of the relationships de facto simply goes on, even in the absence of the required agreement. This has, again, to do with the fact that the informal cohabitants are free to end their relationships without taking any formal steps. As in the three countries discussed above, the Serbian legislature tolerates this form of continuation of joint parental responsibility. Therefore, in Serbia the provisions of art. 75-76 FA are also lex imperfecta without any sanctions.

If the judge later learns that the parents have not reach an agreement, or their agreement was not approved by a judge, one of the parents would be charged with sole parental responsibility.

As with Slovenia, the requirement of making an arrangement regarding the children is one of the effects of legally equalising informal cohabitation with marriage.

Conclusion

The study of the four aforementioned countries allows delineating four important reasons for requiring an agreement with regard to children if the children’s parents are ending an informal cohabitaton:

1. Precondition for continuation of joint parental responsibility after the separation of the parents (all four countries);
2. Avoidance of legal discrimination between marital and extramarital children (Slovenia and Serbia);
3. Further equalisation of marriage and durable cohabitation (Slovenia and Serbia);
4. Facilitation of good communication between the separated parents (all four countries).

With regard to the scope of the agreement, two groups can be distinguished among the four countries. In Portugal and Slovenia the scope of the agreement is considerable, and can be compared with the scope of the parental plan proposed in The Netherlands. In contrast, in Austria and Serbia the scope of the agreement is exclusively limited to child residence.

None of the four countries considers such an agreement a precondition for the termination of the informal relationships. On the contrary, in all four countries such an agreement is a formal precondition for the continuation of joint parental responsibility. However, due to the informal nature of ending an informal relationship, there is no possibility of being able to control the fulfilment of this requirement. Therefore, joint parental responsibility in fact simply continues after the parents separate, even if no agreement was ever concluded. The legislatures of all four countries tolerate this situation. In Austria and Slovenia this tolerant policy is openly acknowledged. The attitude in Portugal is more hesitant, but in practice it boils down to the same result. In Serbia there is as yet almost no experience with the application of the new law enacted in 2005. The absence of legal sanctions for non-fulfilment of the requirement to make an agreement makes the law of all four countries into a lex imperfecta.

At the same time, the conducted study has revealed that the obligation to make an agreement is not entirely a dead letter. The Austrian legislature was perfectly aware that in practice a judge would have no means to discover the termination of informal relationships between parents, and would therefore not be able to control the fulfilment of the requirement to make an agreement with regard to the children of such a relationship. Nonetheless, the Austrian legislature has chosen to introduce such a requirement because it is expected to play an important part if the parents later run into problems with the execution of their parental responsibility and have to ask the judge to resolve them. In Slovenia there is evidence that the parents sometimes submit the required agreement to judicial control upon on their own motion in order to acquire more legal certainty.

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(*) Original Dutch title:
AFSPRAKEN MET BETREKKING TOT KINDEREN BIJ SCHEIDING VAN ONGEHUWDE/NIET-GEREGISTREERDE OUDERS - Een rechtsvergelijkend onderzoek in opdracht van het Ministerie van Justitie -
Prof. mr. M.V. Antokolskaia and Mr. L.M. Coenraad, Free University of Amsterdam, September 2006

1. The Impact of a Father on a Child's Socio-Emotional Development

UK; By Dave Millar; 2006

The Paternal influence upon children has only recently become a more popular area of research within the academic community. With the advent of various political lobby groups being pro paternity, social scientists have begun to study the paternal influence upon child development. The information that we have to draw upon is very conflicting. Auerbach and Silverstein argue that neither a mother or a father is necessary (Auerbach & Sliverstein, 1999), whereas Farrell states that a father is essential for holistic well being of a child’s development (Farrell, W. 2001).

Over the last couple of decades the emphasis has been taken off of father involvement (presence/absence) to father sensitivity. So rather than quantity of time spent with a child, quality of time spent with a child is the important factor (Journal of family Psychology, 2000). Just because a father is present does not mean that is a good thing for a child. In some cases, for instance when a father is maladjusted or abusive, a child’s development can be better without him (Lynn D B. 1974).

One of the factors that makes fatherhood and its implications very hard to research, is the contextual framing around fatherhood. There is a much wider contextual frame around fathers than mothers (Journal of family Psychology, 2000). There are many different types of fathers, making it difficult to come up with any significant findings, however dealing with confounds can become easier in this situation.

The vast majority of mothers are residential, making for good statistical findings, but harder to compensate for confounds. The development of a child’s socio-emotional attributes has to be multi-factorial and multidimensional, which makes looking at one specific factor of influence very difficult. I will take a look at several theories of how the father impacts upon his children, and any implications these theories would have upon the socio-emotional domain of how his child develops. Furthermore I will then relate some studies to these theories.

Freud had a theory called the "Oedipus conflict" which is where a child desires sexually the parent of the opposite sex, but is denied its desire by the other parent. Freud was convinced that a father was responsible for the development of principles, rules and values of society within a child, if the father was missing; the childs view of his position in society was askew. (Lynn. D B, 1974) He thought the father represents the authority of society instilled in a child. Which runs parallel with the concept of the superego, and its development.

Freud believed that men were more advanced than women, therefore the development of "higher" brain functions were more associated with paternal influence. This view has been challenged and virtually discounted. His theories were also based upon the ideas of unconscious drives, meaning that a child was motivated to fulfill its drives.

Role of the Father according to Talcott Parson’s theory centers on the structure of the family echoing the structure of society. Parsons postulates that any group must become one of two functions; Expressive or Instrumental. One way of differentiating between these two roles was between the sexes. With the male taking on most of the Instrumental role (but not entirely) and with the female taking on most of the Expressive role (but not entirely) fathers were to take on the instrumental role because they are traditionally less tied to child care, work more often outside the home, are more involved with community affairs, in politics and just dealt with more people in general.

According to Parsons the father not only brings the society into the family but brings the family into society. He is supposed to bring discipline into a family so that child will accept responsibility and eventually separate from its mother, becoming a part of society and then starting the sequence all over again when the child then becomes a parent. There is the idea that a mother’s love is unconditional, (ever heard the expression "a face only a mother could love"?) but a father's love is conditional upon what the child can do.

Once again the idea is that the father primarily is concerned with the incorporation of the child into society. A mother’s love is to be cherished under this system but it belongs to the child and the child can not lose it, but a father’s love is to be earned and a father is the families representive of society. Therefore if the father loves the child then society will as well.

In interviews, fathers were found to be more concerned for the emotional security and learning of their child, whereas the mothers talked more about their child being free from anxiety. Fathers also tended to stress the teaching of certain values or specific child rearing goals more often than mothers. (Lynn D B. 1974). When children were interviewed with regards to perception about fathers in the same study, fathers were characterized as being strong, powerful, potent, dominant, authoritive, and competent.

Attachment theory was coined by John Bowlby; it has a close partnership with evolutionary psychology and Psychoanalytic ideals. It is argued that attachment is an evolutionary construct in order to ensure the survival of the species, and that it is a two way system of ensuring the continuation of the species.

Psychologists use this theory to explain the way the child – caregiver relationship progresses the way it does, and has the long lasting impacts that it does. Secure attachment patterns in children are very good predictors of child behavior, and behavior throughout the life span in certain domains.

Bowlby specifically used the term "caregiver", as the signals from the child, are supposed to elicit the same reactions in any adult. Although he did say that this caregiver was normally the mother. More recently though, different patterns within attachment have been discovered within the attachments to mothers and fathers.

Mothers and Fathers interact with their children in different ways, fathers tend to play more physically and induce more excitement from their children than do mothers as cited in (Berk, L., 2006) fathers reacting appropriately to a child’s expression of emotion, predicts positive emotional and social models of behavior in later childhood and adolescence. It is theorised that fathers instill a sense of confidence to explore within relationships (Berk, L. 2006) this idea also works in well with Parson’s theory.

Maccoby documented that the differences between the sexes were mostly within a social context and not really with individual differences, as how most gender comparisons have been performed (Maccoby E. 2000). Bearing this in mind, the father-child dyad can be assumed to be different to the mother-child dyad, due to the mere fact that each parent is a different gender and it is the social interaction with the dyads that we are concerned with. This fits in with Freud’s and Parson’s theories, in that the mother and the father have distinct roles in child development.

Franz et, al found that the most significant predictor of empathy within children was paternal involvement in child care. (Franz C., et al 1990, as cited in Farrell W,. 2001) Farrell theorises that fathers set clearer boundaries than do mothers, and this in turn teaches the child to respect other’s boundaries. As per Parson’s theory, where children see their father as authoritive and powerful, setting clear boundaries would be more associated with the father.

Clark-Stewart and Hayward’s study found that in the context of single parenting, children were better off in the custody of their father (Clark-Stewart & Hayward 1996). Their study covered a variety of psychological well-being assessments including self-esteem, anxiety, depression and problem behaviors. This study also accounted for parental income, the psychological adjust of both parents and time spent with the non-custodial parent.

Rebecca Ang’s study of aggressive boys in Asian schools found that the highest correlation with aggression in boys is a bad relationship with the father (Ang, R. 2006). These studies highlight the importance of father child relationships for socio-emotional development.

However, there have also been studies that have shown that same sex parenting has no negative affect or effect upon child development (Auerbach. C & Sliverstein L 1999). This particular study argues that neither mothers nor fathers are essential for child development. They state further more that "Neither the sex of the adults nor the biological relationship to the child has emerged as a significant variable in predicting positive development". Auerbach & Sliverstein go on to say that they think it is preferable that both biological parents take a responsible role in their child’s life, however they argue that it is not essential.

In conclusion, the study of parenting in general is very value laden, there have been books written to discount other books. This makes finding any hard, unbiased evidence difficult. The different theories also come from completely different perspectives, Freud’s theory states that a child is actively seeking to have its goals met, whereas Parson’s theory subscribes neatly into social learning theory, the child being like a sponge, and soaking up what is around it.

Attachment theory comes from a biological/evolutionary perspective, relying upon survivalist ideas and motives to explain child behavior. Most of the recent studies however, do show that paternal influences do have an effect upon child socio-emotional development.

References

· Ang, Rebecca P. (2006). Fathers Do Matter: Evidence From an Asian School-Based Aggressive Sample. AMERICAN JOURNAL OF FAMILY THERAPHY. Vol. 34, (1) Abstract obtained from APA/psycINFO Item: 2005-16465-006

· Auerbach, Carl F. & Silverstein, Louise B. (1999) Deconstructing the Essential Father, American Psychologist Vol. 54. No. 6, pg.397-407

· Berk, Laura E. (2006) chap.10 Emotional Development Child Development (7th ed.). p 428-429 Boston: Pearson Publishing

· Clarke-Stewart, K. A., Hayward, C. (1996) Advantages of Father Custody and Contact for the Psychological Well-Being of School-Age Children JOURNAL OF APPLIED DEVELOPMENTAL PSYCHOLOGY Vol. 17, p. 239-270

· Farrell, W. (2001) "Why Dad is Crucial" Father and Child Reunion Syndey: finch publishing

· Franz C., Koestner, R., & Weinberger, J. (1990) "The Family Origins of Empathic Concern: A Twenty-Six Year Longitudinal study." Journal of Personality and Social Psychology 58: 709-717.

· Lynn, D B. (1974). The Father. Chapter 7. Wadsworth Publishing Company, California.

· Maccoby Eleanor E. (2000). Perspectives on gender development INTERNATIONAL JOURNAL OF BEHAVIORAL DEVELOPMENT. Vol. 24 (4), p 398–406

· NICHD (2000) Factors Associated With Fathers' Care giving Activities and Sensitivity With Young Children JOURNAL OF FAMILY PSYCHOLOGY Vol. 14, No. 2, p.200-219

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