Shared parenting: fathers being forced to go down ‘adversarial route’

Unmarried fathers in Ireland do not have automatic guardianship rights

David McCormack and Sam Dunne with their son Rian. Photograph: Nick Bradshaw

David McCormack and Sam Dunne with their son Rian. Photograph: Nick Bradshaw

 

If you had asked Sam Dunne two years ago if she and her former partner, David McCormack, were sharing the parenting of their son Rian, she would have said yes. In hindsight, she sees it differently.

At the time, they had reached the stage where they were civil to each other, shared information about their son, went to school and health appointments together and David had Rian at his house for a 48-hour period every week.

But the reorganisation of their lives that was required when Sam took up a full-time job brought their co-operation to a new level. Now both of them talk of their pride in what they regard as truly shared parenting of eight-year-old Rian. And that has come after a very rocky start to parenthood.

Their son was just a few weeks old when the couple separated in 2012. They had been together for nearly eight years and the pregnancy was planned, says Sam, but it all went off script after that. “The emotional difficulties around becoming parents tripped both of us up and there were obviously cracks in the relationship before that,” she says.

The ensuing litany of pain, grief, anger, resentment and going to court will be familiar to many who have been through relationship break-up. For Sam, the one big regret is that the supports were not there to help them avoid court, which she reckons was unnecessary and set them back a year.

David is not so sure mediation would have worked at that stage. “Communication wasn’t in a good place and that is why we ended up in court,” he says, in a separate interview.

Rian was two when Sam decided she didn’t want the ongoing resentment and anger she felt in her life any longer. “I realised I had to see Rian in all of this, which I thought I had been doing but really I hadn’t.”

She knew David loved him as much as she did and that “a bad partner doesn’t make a bad father”.

“I started by acting as if I didn’t resent him any more and, after a while, I didn’t. We got on very well.”

They settled into a better parenting routine and she made efforts with David’s new partner as well.

The next big change came when Rian was six and Sam was offered a full-time job, after years of juggling his care with her further education. Now that she was going to be away from their home in Lucan, Co Dublin, for about 45 hours a week, she asked David, who lives 10 minutes away in Maynooth, Co Kildare, could he adapt his working hours so that they could minimise the time Rian spent in out-of-school childcare.

She had the flexibility to drop him to school before going into work and she suggested David would then pick him up from the after-school childminder at 5pm, bring him home to her house, do homework with him and make his dinner before she got back.

At first, she felt he didn’t want to commit to the new arrangements and he didn’t think it was fair he had to change his working hours. She pointed out that she had been arranging all their son’s childcare for the past six years and that it was time he “stepped up”.

On her first Monday at work, she wasn’t sure David would collect Rian from the childminder at 5pm. “But he did and he has been doing it ever since.”

Describing that period as “initially difficult”, David says: “There was change involved; I am lucky enough to have a flexible job that allowed me to make those changes.”

Now he has no doubt that it has strengthened his bond with Rian and has brought a new dimension to the shared parenting with Sam. “I get to see Rian every day. Anything that comes up on the fly, we can make decisions because as parents we see each other every day at the handover. We can have these conversations more regularly and there is nothing left on the long finger. It brings more fluidity to the whole thing.”

Sam works for Treoir, an information and support service for unmarried parents. Although nearly 40 per cent of births in Ireland now are outside marriage, the organisation believes we’re still living with the legacy of a time when single mothers were demonised and the fathers not expected to take responsibility.

Adversarial route

In that context, says Treoir chief executive Damien Peelo, “we have a system in place that puts the primary care of children born outside marriage on the mother and the father is then a position where he must apply for, or be granted, rights and responsibilities”. This has led to many fathers “having to go down an adversarial route to establish their basic parenting responsibilities”.

As it is widely accepted now that, where possible, children should be cared for by both parents, Treoir is lobbying for equality of guardianship for unmarried parents and for a shift in thinking about what “shared parenting” really means.

Currently for children born outside marriage, the mother is the guardian and the father does not have automatic guardianship rights – even if his name is registered on the birth certificate. Whereas married parents are automatically joint guardians.

Under the Children and Family Relationships Act 2015, the unmarried father is granted guardianship if he has lived with the mother for 12 consecutive months before the birth and three months afterwards. Alternatively, both parents can sign a statutory declaration agreeing that the father be appointed as joint guardian.

Without that agreement, or where the woman disputes that he has met the co-habiting requirements, the unmarried father must apply to the District Court to be appointed as a joint guardian.

The Oireachtas Joint Committee on Justice and Equality, in its Report on Reform of the Family Law System published last October, concluded that “serious consideration ought to be given to granting automatic guardianship rights to unmarried fathers”. It also recommended creating a central register of guardians.

Peelo acknowledges that automatic guardianship for unmarried fathers needs to be nuanced. It could be problematic where children are born as the result of rape, incest and in other questionable situations, he says.

However, he believes these cases can be weeded out, just as they should be within married couples, without depriving many other good fathers of the rights and responsibility for the care of their child. This could be done when the birth is being registered, he suggests, with staff trained to deal sensitively with mothers who say they can’t or won’t name the father.

Peelo also highlights another big weakness of the current system, namely that joint declarations by couples of an unmarried father’s guardianship go unrecorded.

“There is no registration of guardianship except those who have gone through the courts – we don’t know who the guardians of our children are, which is really tragic at this stage,” he says. “It creates all sorts of problems.”

Treoir has been looking at legal and societal barriers to shared parenting and Peelo points out there is no cohesive definition of what that term means. Can a situation where both parents have access to a child but no common plan be considered shared parenting? What is the best way for two people to parent a child when they do not live together, or may never even have had a relationship?

Often fathers have to apply to the courts for access and the time they are given to spend with the child is usually a time when they are not working. “That is not necessarily parenting the child in the everyday way that parents would normally parent a child.”

Rather, access is given in his free time and “often done in a way to least inconvenience the father, to be honest, rather than convenience the child”.

Treoir is advocating the concept of “parenting time” that is used in some US states, where both parents are given periods of time, not necessarily equal in length, but during which they both  need to take responsibility for all aspects of parenting including, for example, making sure childcare needs are covered, arranging school drop-offs and pick-ups, devising a “plan B” on days they are sick.

Peelo says longitudinal studies in the US show that this approach not only generates a better relationship between the child and each of the parents but also between the two parents.

“It isn’t a competition for the child. It is about finding a way that gives the child the best opportunities to access and be cared by both parents – where possible,” he adds. “It is not always possible.”

Support group

Dave Saunders’s experience as an unmarried, teenage father motivated him to launch the support group From Lads to Dads (tel 085-1835-953) in Tallaght, Dublin, last year and earlier this month it was officially recognised as a charity. Initially it was a young fathers’ group but it has broadened into an organisation for fathers of all ages.

“A lot of them are terrified of becoming a father and are looking for additional supports. Some of them might not have had fathers or male role models in their lives,” he says. They may not want to discuss it with their partners because they feel the pregnant woman has enough to deal with.

“It probably comes across as if they are not engaged, when nothing could be further from the truth,” says Saunders.

Part of the programme is to build young men’s confidence around their fathering role. As he found when he became a father at 18, “because you’re not experienced in any shape or form, you do fade into the background. You’re afraid to step up.”

A minority of the men are not in a relationship with the mother of their child and they need guidance on how they might co-parent.

Saunders is “a very proud parent” of Sophie (28) and Aaron (20). After he separated from their mother 16 years ago, he says he was lucky that shared parenting was agreed amicably.

“I never had to worry about guardianship or access. We’ve had our ups and downs like most couples but, on the whole, it has worked very well and to this day we have a good relationship.”

It’s a very different story for Stephen (not his real name) who says he was “dragged” into family court,  despite his claims that his former partner walked away from mediation twice. They had a five-year-old child but were talking about separating because, in his words, “we simply weren’t getting on”.
He says he returned from work one evening to find she had moved out with their child. It took him two weeks to find out where they were.

Stephen says he suggested a temporary co-parenting plan, as the child was his priority, but believes the involvement of a solicitor aggravated the situation.
“I ended up being accused of domestic abuse” – an allegation he denies.  “An application was made for a protection order and a safety order.”

Rather than fight back, he told her solicitor he was willing to give an undertaking for six months “not to harass and molest”, on the basis he had no intention of doing that. Although, in hindsight, he believes not defending himself was a mistake as he suspects it may have coloured the judge’s decisions in subsequent proceedings.

“For good reason, the law is heavily weighted towards women,” says Stephen. “Unfortunately, that affects a lot of good daddies – that is a fact, there is no getting away from that fact. I feel if enough thought and effort was put [into the system] we could do better.”

He says his ex-partner “thinks she has the right to decide everything and anything” to do with their child and that he has “to live with it.”
Currently, Stephen is very happy to have more time with his child than stipulated under the court order as he is working from home, his former partner is back in her workplace and childcare facilities are yet to reopen. 

Yet he still wouldn’t call it shared parenting, as they only communicate through notes, or if needs be, through a third party. “To me,” he adds, “shared parenting is a bit more collaborative than what is going on at the moment.”

Automatic guardianship for unmarried fathers ‘unwise’

The national organisation for one-parent families, One Family, believes the introduction of automatic guardianship for unmarried fathers would be “unwise”.

“You cannot have automatic guardianship where a child is conceived in criminal circumstances,” says its chief executive Karen Kiernan. “Other countries who have introduced it have seen some abusive fathers use guardianship against mothers and the children. And we would see that in some cases here as well.”

While she acknowledges that lots of good fathers are not being given the opportunity to parent, she contends that there are very few dads who, if they apply for guardianship, won’t get it. “There is an extra step but it’s very unlikely that any deserving dad would not get guardianship.”

If we’re looking at strengthening rights and responsibilities of unmarried fathers, then let us look at more supports for those fathers, more supports for all parents, and let’s look at a much better family law court system, she says.

There are lots of difficulties around shared parenting, for both mothers and fathers. Broad feedback to One Family’s research on the issue is that “both mothers and fathers feel they are discriminated against because of their gender, for different reasons”.

People may feel very discriminated against as a group “but we keep talking about the children – what do the children need?” adds Kiernan.

“The best interests of children is of course to have a relationship with both parents, once it is safe to do so. I think we are still on a journey in Ireland around the safety part because we do not have sufficient systems, supports and assessments yet in place to ensure all children who are having contact are actually safe.”

On  Thursday, July 2nd, One Family is hosting an online seminar from 3-5pm on the future of family law in Ireland. There will be speakers from the Department of Justice and Equality, the Courts Service and the judiciary, as well as the former chief executive of the Children and Family Court Advisory and Support Service in England, Anthony Douglas.

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