Family Law Matters!!
By Brid Manifold, Family Law Mediator
“The Trouble With The Family Law Courts”
Q: My wife and I separated 2 years ago. We have a son and a daughter aged 11 and 13. At that time we agreed we would do everything we can to protect the children and we did try hard to do that. Six months ago I had to take a big reduction in salary and my wife brought me to court for maintenance. It was very stressful and I was shocked to hear my wife accuse me of neglecting my children. Since the court, I suspect my wife has been discouraging the children from seeing me. There seems to be a lot of cancelled arrangements I feel now that I am a token in their lives, there only to write the cheque. My wife knows I love my children more than life itself. I dont know what to do next.
A: I note what you say about the agreement that you and your wife made to protect the children. This is the natural instinct for many loving and committed parents. Despite your best intentions, it can be inhumanly hard to maintain good relations with an ex through the crisis and fear, not to mention financial pressure of a separation. For many couples who do manage to achieve this, when the time comes for a divorce application, that good work can start to unravel.
When judicial separation and divorce were introduced in Ireland in the the mid 90’s, no steps were taken to design a family law system to meet the needs of a family going through a breakup. It was easier to take the existing litigation model, which is used for all disputes, be they motor accidents or commercial cases, and simply transfer it onto family law cases. This litigation model is intended to be adversarial, where parties are set up for confrontation. For example, until quite recently, spouses were referred to as Plaintiffs and Defendants as though one of them was the offender. Worse still, the court documents often contain allegations and counter allegations of bad behaviour against an ex partner. Despite the fact that all divorces and most separations are granted solely on grounds of number of years apart. We all know the power of the written word to cause deep hurt and leave a legacy of bitterness and shame lasting lifetimes.
What you can do now is to recall the commitment you and your wife made to the children in the early days of your separation, and try to put the unfortunate court experience behind you. I often tell clients that an adversarial system brings out the worst in everyone. What husbands and wives say about each other in a courtroom setting, cannot paint a fair and balanced picture of their overall relationship.
You say you are unhappy with how often you see the children. As you have also said that your wife is equally concerned for the children, you could propose a mediation meeting to your ex wife where you will be helped to restore your good co parenting relationship.
A complete overhaul of the family law system is long overdue, where couples and children can be treated with the sensitivity and dignity they deserve in a time of crisis. In the meantime, not so well known is that there are now in Ireland a number of new and postive alternatives to family litigation.
“Why can’t I see my daughter”?
Q: It was my daughter, Leah’s third birthday on Saturday last – it was all arranged I was to collect her the following day, Sunday at 12pm for a small party with my family. Then at 11pm the night before I get a text from my ex telling me she has made other plans and not to call as they won’t be there. This is not the first time she has done this to me. Is there anything I can do to stop her interfering with my relationship with Leah. We are not married. What rights have I?
A: You are not alone in this experience. While it is important that parents can separate their relationship with their children from the relationship they may have with each other, all too often, unresovled conflict between a couple can really hamper a couple’s ability to work together as parents. Where the couple are unmarried, the separated father can feel at the mercy of the mother’s whim when it comes to contact with his children. Equally, an unmarried mother raising children alone can feel abandoned and unsupported.
It is important that you clearly, but calmly, point out to your ex the importance of regular contact for you and Leah. It might help to ask your ex to attend mediation with you or for suggestions from her to improve communication between you. It may be that you will have no choice but to go through the court. In my experience, it is always always better if a couple can manage to work out arrangements for the children themselves. Shared parenting demands a lot of patience, cooperation, communication and an ability to put the child’s welfare ahead of your own comfort.
Regardless of how close a relationship you may have with your daughter, as an unmarried father, you have no legal relationship with Leah. Even having your name on her birth cert does not confer legal rights. You should establish guardianship by both you and her mother signing a Statutory Declaration form. If her mother refuses, you can apply to the court for guardianship.
Single mothers are sometimes alarmed when their ex seeks guardianship and perceive this as an attempt to take the child from them. There is no for such concern. While the courts will rarely refuse guardianship to a biological father, the rights acquired are limited. A guardian has a right to make decisions on the major area’s of a child’s life, such as religion, schooling, passports, medical treatment and adoption. It does not confer any custody or access rights as these are separate legal rights. Guardianship also carries a duty to maintain and care for a child.
Shared parenting works better when there is less focus on parental rights and more concern for the child’s rights. What is important for Leah is that she can feel loved by and free to love both of her parents.
The issue of unmarried fathers’ rights will be much debated in the coming months when the Labour Party tables its Guardianship of Children Bill. This law will introduce automatic registration of the father’s name on birth certificates and automatic guardianship for unmarried fathers. You will find very helpful information for unmarried parents on www.treoir.ie
If you have a family law or mediation question please contact Brid Manifold via
Email: firstname.lastname@example.org or Phone: 091 532560
Brid is a family law mediator and solicitor specialising in family law in Galway City.