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What happens after parents with disputes over parental authority have left the court room?

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As a result of a family law reform of the Danish Parental Responsibility Act in 2007, joint parental authority became the general rule. A study from SFI evaluating the law reform found that 43 percent of the parents, who ended up with joint legal authority as a result of a court decision, were not capable of discussing everyday matters concerning their child. Among these, a considerable proportion of parents had no contact with each other at all.

In legal disputes over parental authority, residence or contact, the court can now determine that there should be joint parental authority, even if this is against the wishes of one of the parents. The court can only allocate sole parental authority to one parent when there are ‘significant grounds’ for such an allocation. The family law reform also introduced the possibility for family law authorities to establish a contact arrangement, which amounts to shared residence in respect of the allocation of time (equal care arrangements).

After the courtroom

Our main question was: Does the underlying standard regulation of law work in “real life” as the legislators originally intended? Is the result collaborative parenting, or should we expect limited or even unintended effects?

We analysed this problem by focusing on parents (and children) who had been involved in a legal dispute over parental responsibility: What happens after the parents have left the courtroom and how do they come to live with the judgment ordered by the court?

We registered information from all cases of parental responsibility disputes closed by the Danish district courts in 2009. The purpose was to map out patterns of legal decisions and analyse the rationales behind these decisions. From a quarter of the total number of cases, we created a random sample of parents, who participated in a survey shortly after their case closed (2009) and again in a follow-up study one year later (2010). We asked these parents a number of questions about collaboration and communication. A multiple logistic regression was used to identify factors that help to explain why parental cooperation either continued or stopped a year after the legal proceedings.

Lack of capacity to cooperate

One year after the court case, at least one-half of the cases had a conflict potential that could develop into another legal dispute. The formal character of the case (i.e. whether it was a dispute over parental authority, residence or contact) had no significant impact on conflict occurrence.

While legal decisions on joint parental authority were quite widespread (46 %), the courts generally appeared to be reluctant to decide that there should be an equal care arrangement. Most children had, however, contact with the non-resident parent, and these contact arrangements were rarely organised flexibly. Parents, who were ordered by the court to have an equal care arrangement or joint parental authority, tended toward more flexibility compared to other parents.

With regard to parental communication, parents who were ordered by the court to have joint parental authority, had more extensive communication (e.g. face-to-face dialogues), and were more inclined to talk about everyday matters concerning the child, than parents from cases where the judge decided that only one the parents should hold parental authority. Similarly, parents with joint parental authority generally described theirparental co-operation climate as better, and the proportions of parents with extensive or moderate parental cooperation were significantly higher than in cases with sole parental authority.

However, considering that joint parental authority should imply some kind of co-parenting, it is noteworthy that 43 percent of the parents, who ended with joint legal authority, did not have capacity to discuss everyday matters concerning their child. Among these a considerable proportion had no contact with each other.

Scenarios to test level of agreement

We presented parents with four scenarios illustrating important matters on which the legislators expect parents with joint parental authority to agree (medical treatment, school choice, leisure activity, change of name). We asked the parents shortly after the trial and again one year later. No significant changes occurred between the two measuring points.

Parents with joint parental authority were more inclined to reach agreement on these minimum requirements than those from cases with sole parental authority: 75-80 percent of parents from the sole parental authority cases were found to be outside any agreement zone, which in most cases related to the fact that they had no parental communication at all. Among parents from the joint parental authority cases, half assessed that they could reach agreement in important matters, while the other half was outside the agreement zone. Thus, many parents who the court expected to cooperate were not able to meet the minimum standards set by the law.

Multiple regression analyses suggest that the previous family history, in terms of ability to handle parental cooperation prior to the legal proceedings, may serve as a guideline to predict the future collaborative potentials. On the basis of the analyses, we found no evidence that the direction of parental cooperation would change dramatically over time. The analyses furthermore show that the legal decision itself appears to have a small, but independently significant impact, on the explanation why parental cooperation is extensive one year after the legal proceedings. We interpret this finding as a result of the selection mechanisms that take place when judges take decisions: It reflects that judges are adept at spotting those parents who possess potentials for cooperating in efficient ways.

All in all the main conclusion of this study is as follows: Although parents with joint parental authority appear to have better cooperation capacities than those with sole custody, the question arises whether the observed levels of parental cooperation are satisfactory?

Further information contact Mai Heide Ottosen, mho@sfi.dk 

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