Abstract
Parent perspective and experience is largely absent from the research literature in child custody decision-making, making it challenging for social workers to understand the parent experience. Research often focuses on outcome studies regarding children’s adjustment and well-being, with little attention to the parent voice. This article addresses this gap using a phenomenological approach. Eighteen participants were recruited from a mid-sized community in Ontario through the mandatory information program (MIP). In-depth interviews and thematic analysis reveal five themes: (a) redefining role, (b) the importance of agency, (c) shared decision-making, (d) the battleground—barriers to shared decision-making, and (e) complexities involved in shared decision-making. These findings illuminate shared parenting challenges, highlighting the need for family supports and services in navigating challenging post-separation realities.
Child custody decision-making is driven within a legal context, and social workers with the vast fields of practice have contact with many families navigating the legal and social service fields. Some social workers are employed in the field of child custody and access, such as the Office of the Children’s Lawyer in Ontario, and others in overlapping fields of practice. Common for social workers is the professional value, pursuit of social justice, and accompanying principles that encourage social workers to advocate equal access to resources and to challenge social injustice (Canadian Association of Social Workers, 2005). To appreciate the complexities of child custody decision-making for parents experiencing high conflict, social workers need an understanding of the legal context in which this private family matter becomes a public discourse. Although the concept of high conflict appears at times elusive as definitions of high conflict differ (Saini & Birnbaum, 2005), in this article, high conflict is understood from the original source as high degree of anger, hostility, and distrust, and high rates of litigation (Johnston & Roseby, 1997). The study that is described in this article occurred within a Canadian context, yet child custody decision-making shares complexities from Canada and the United States, to the United Kingdom and Australia.
Parents shared their experiences with child custody decision-making in this study through the following research question:
Research Question 1: In the divorce process, how do parents perceive and experience their ability to make child custody decisions together?
From the parent experience, social workers can learn the ways in which they can support agency for parents, thereby creating a more collaborative system of support toward social justice.
Why This Study?
Divorce and child custody decision-making are issues that affect a large number of Canadians and do not account for separating couples who reside in common law. In 2010/2011, Ontario showed a slight increase (31,281) in new applications for divorce in family court (Statistics Canada, 2012). Divorce in this study means the ending of the marital relationship, legal or common law, through separation, with the intent to no longer reside together or be a family unit (Allan, 2013). Members of the broader legal system (e.g., judges, lawyers, custody and access investigators, mediators, parent coordinators, parent coaches, arbitrators, and others) are involved to a large extent in the divorce process, potentially influencing parental decision-making. For example, child welfare is a major area of employment for social workers (Hick & Stokes, 2017), who would require an understanding of the parent experience to provide adequate support to families navigating these challenging social and legal systems. The importance of participant voice and people’s participation in decisions about their own lives provides an opportunity to access and exercise power in such ways as to have an impact on and change the social structures, such as mental health (Grant, 2007), and child welfare (Smithson & Gibson, 2017).
Understanding the Complexities of Child Custody Decision-Making in Ontario
Understanding the complexities of child custody decision-making for parents and social workers who support them begins with legislation and social policy. The Divorce Act (1967-1968) was passed in 1968 and became Canada’s first federal law addressing divorce (Payne & Payne, 2013). The history of child custody decision-making includes legal presumptions (assumptions) that will guide judicial decisions. In Ontario today, custody and access decision-making through the court is subject to either the Divorce Act (1986) or the Children’s Law Reform Act (CLRA; 1990), with a presumption of the “best interests of the child” (CLRA, 1990; Divorce Act, 1986), an indeterminant concept according to Mnookin (2014), given the lack of predictive outcomes in social science research, and no societal agreement regarding best or least harm. At the same time, the provincial legislation supports both parents having custody of their children: “except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child” (CLRA, R.S.O 1990, c. C.12, s.20 [1]). In addition, in Canada, the public policy goal encourages children and parents to have frequent and meaningful access (Pruett & DiFonzo, 2014).
Currently, in Canada, child custody refers to both legal and residential custody. Legal custody means parents make decisions on behalf of their children, whereas residential custody represents time parents and children share (Bala, 2014). Shared custody refers to both parents having the ability to make decisions on behalf of their children and when parents are responsible for the children at a minimum of 40% of the time (Bala et al., 2017). In three Canadian provinces, British Columbia, Alberta, and Quebec, legislative changes have occurred and include a presumption of shared parental guardianship and language such as parental responsibility and parenting time (Bala et al., 2017).
It is important for Canadian social workers to know the legislative requirement is that both parents have custody of their children; yet, shared custody is not a presumption (assumption) in the courts outside of British Columbia and Alberta. In addition, although the majority of parents have joint or shared custody (75%; Bala et al., 2017), most reside primarily with their mother (62%), and a smaller number of children (21%) spend up to 40% of their time with the other parent (Bala, 2014). When both parents spend time or have care of their children, it is referred to as shared parenting.
Shared Parenting
A focus on shared parenting reflects a cultural shift in language and practices around one form of post-separation arrangement where both parents assume responsibility for the care and decision-making of their children (Smyth, Chisholm, Rodgers, & Son, 2014). For example, a global view of shared care reflects 50/50 ratio of time (with each parent) in the United Kingdom and Sweden, and 30/70 or 35/65 ratio of time in Australia and the United States (Fehlberg, Smyth, Maclean, & Roberts, 2011), and 40/60 in Canada (Bala et al., 2017). Whereas most parents (85%-90%) make their own post-separation parenting arrangements without the use of the legal system, many choose to share parenting (Bala, 2014), and a recent study indicates that 30% of the 1,000 litigated cases involving high conflict situations in two Ontario court districts are also shared parenting (Birnbaum, Bala, Polak, & Sohani, 2016). Applying that study’s high conflict sample distribution of one third to Ontario’s total annual number of applications for separation and divorce potentially means almost 9,400 families annually are engaged in high conflict during and after (as we learn from the parents in this study) their separation process. This highlights the need for social workers to have an appreciation of the parent experience.
The deliberations over Family Law Reform, described as gendered debates (Jaffe, 2014), share commonalities. First, proposals for reform, including a presumption of shared time parenting, have been initiated by men’s advocacy groups (Bala, 2014). Second, the opposing groups to these proposed reforms have been feminist groups and the legal community (Bala, 2014). Debates on legislative reform suggest that sharing “decision-making” appears to be less of a concern than “sharing time” (Pruett & DiFonzo, 2014). Shared decision-making, also known in Canada as joint or legal custody (Bala, 2014), refers to parental agreement on major decisions as they relate to the children, including education, health care, religion, and social activities (Kaspiew et al., 2009).
In the United Kingdom, legislating for shared time parenting in situations of high conflict is not supported despite an understanding that most people believe children should have regular contact with both parents (Fehlberg et al., 2011). A number of factors that lead to risks for children’s healthy development in high conflict families have been identified, including (a) low levels of maturity and insight on the part of parents; (b) poor emotional availability of parents to the child; (c) ongoing high levels of conflict; (d) ongoing significant acrimony between parents; and (e) perception of risk to the child by one parent while child is in the care of the other parent (Trinder, 2010).
Impacts of Parenting Arrangements on Children
Poor communication and cooperation over the care of children can last more than 2 to 3 years following parental separation (Johnston & Roseby, 1997). More recent publication of literature reviews summarizes the impacts of various parenting arrangements on children (Kelly, 2000, 2006; Nielsen, 2011); yet, none of the outcome-based studies (Kaspiew et al., 2009; Kelly, 2006) have explored the process of the parent experience in child custody decision-making, and instead have focused on children’s adjustment and child well-being from the parent’s views (Birnbaum & Saini, 2015; Trinder, 2010). Nielsen’s (2011) review of studies from 1979 to 2009 about shared time parenting excluded high conflict families. Smyth (2009) and Shaffer (2007) both indicate no empirical evidence of a linear relationship between the amounts of shared time children spend with each parent and outcomes for children, suggesting that there is no particular post-separation parenting arrangement that is most beneficial to children (Fehlberg et al., 2011). Yet, in a recent study of adults who expressed concern about their experiences of their own childhood arrangements, Whitehead (2015) found that their shared parenting arrangements were rigid, focusing on stability and fairness for adults rather than having a child-focus. A focus on the parent voice provides an opportunity to understand the everyday lived experience for parents with varied custody and access arrangements, and varied levels of conflict. It helps us to look beyond professional debates to acknowledge another way of knowing, and to know where our social work services can be most helpful to families because, currently, parent perspective and experience is largely absent from the research literature in child custody decision-making, making it challenging for social workers to understand the parent experience (Archer-Kuhn, 2018).
Method
A qualitative, phenomenological approach is used to gain an in-depth understanding from participants about their experiences and ability to make child custody decisions together with their former partner. Eighteen parents undergoing divorce and custody proceedings were recruited in a mid-sized city in Ontario, through the Ontario Mandatory Information Programs (MIP), using purposive sampling and snowball sampling (Creswell & Clark, 2011). Participants received a $20 (Canadian) gift card for their participation. Ethical approval for this project was given by the University of Windsor, in Ontario, Canada (REB# 13-138).
Data Collection
In Ontario, legislation requires that all families seeking separation or divorce or a change in custody status attend MIP. Recruitment for this study occurred over a 4-month period at each of the MIP sessions held 3 times per month. Eighteen participants agreed to attend one-on-one in-person semistructured, audio-recorded interviews lasting approximately 1 to 1½ hour each. Participants were asked to respond to seven open-ended questions (with additional prompts) from an interview guide keeping the conversation focused on the research question about the parent experience, for example, tell me about decision-making in your divorce process and, describe how you and X make decisions regarding the children. Finally, participants were asked to complete a demographic form to provide basic information about their age, gender, race/ethnicity, and custody status. At the end of each interview, participants were invited to participate in a member check process. This included reviewing the initial themes and identifying in writing the ways in which the themes fit, or did not, their experience. A subgroup of eight participants followed through with this stage of the study.
Participants
Custody status was an integral part of the parent experience in child custody decision-making. The majority of participants (14) were the custodial and primary residential parent, and there were a number of combinations of parenting arrangements and custody status for participants such as sole custody with or without access, joint custody with access that was exercised often or infrequently, and custody status that was not yet determined in the court. The four remaining parents were non-custodial fathers with access to their children. Participants were asked to self-identify their race and ethnicity. Thirteen participants self-identified as White and Canadian, whereas five participants each named one of the following as the way they understand their race and ethnicity: Native Canadian, Iraqi, Hungarian, Belizean, and Kenyan.
Eleven women (10 White Canadian, 1 native Canadian) and seven men (three White Canadian, three immigrants of color, one White immigrant) participated in the study, ranging in age from 25 to 51 years (M = 38.83, SD = 7.23). Seven of the participants obtained a high school diploma, seven a college diploma, two a bachelor degree, and two held master’s degrees. Through self-identification, 15 of parents in the study said the level of conflict was either a 4 (high) or a 5 (extremely high), while 3 of the parents identify the conflict between them and their ex-partner as a 1 (extremely low), 2 (low), or 3 (medium). Thirteen of the 18 parents in this study were apart for more than 3 years, and, of those, 11 indicated high or extremely high levels of conflict. The rating of high conflict was supported by self-identification of one parent only, as their former partner did not participate in the study. In addition, the conflict rating is not a professional assessment so as not to influence the ways in which they understood levels of conflict and instead provided the space for self-identification.
Data Analysis
Audio-recorded participant interviews were transcribed verbatim. The transcripts were read multiple times to allow the researcher immersion with the data. An inductive approach was used to develop the codes, meaning that the codes were developed from the data rather than a preexisting coding frame, keeping the codes as close as possible to the data. There was a steady decrease in the number of new codes that were developed with consecutive transcripts ranging from 215 codes (first transcript) to only one new code (Transcripts 14 through 18). The process of interviewing and analysis continued until saturation was reached.
Thematic analysis was used for organizing the data into codes, categories, and themes with the goal to seek patterns in the data (Braun & Clarke, 2006). After coding the transcripts manually, they were entered into the software program NVivo as another way of organizing the data during analysis. Further means of trustworthiness included peer debriefing and member check. After assigning all of the codes into categories, two colleagues reviewed the analysis from raw data to codes to categories as a formal way to check out or test the analysis. Themes were then identified from the categories and participants were invited to reflect on the initial nine themes. Eight participants provided a written description of the ways in which the themes fit (or did not) for their experience. Using participant feedback, themes were reduced to five aligning with participant written reflections. This member check process strengthened the analysis as it allowed more clarity of the parent experience.
Findings
Five themes emerge from the interview data using thematic analysis: (a) redefining role, (b) importance of agency, (c) shared decision-making, (d) the battleground—barriers to shared decision-making, and (e) complexities involved in shared decision-making. Each theme represents a piece of the overall story participants have revealed of their experience with shared child custody decision-making, a thematic map delineating the relationship among themes (Figure 1).
Data analysis framework.
To achieve shared decision-making, participants said together they need to focus on the needs of their child. This is illustrated in Figure 1 through the large outside triangle of three themes: redefining role, importance of agency, and shared decision-making. These themes are noted in Figure 1 using red arrows (i.e., the outer arrows) and red outlining text boxes. More often, what participants describe is a process where they are unable to achieve shared decision-making, and they say this is likely the focus on self, first. This is shown in Figure 1 in the small triangle of three themes: redefining role, the battleground—barriers to shared decision-making, and complexities involved in shared decision-making. These themes are indicated in Figure 1 using blue arrows (i.e., the inner arrows) and blue outlining of text boxes.
Focus on the Needs of the Child, First
Redefining role
Parents in this study seek to redefine their role following separation, and this process occurs regardless of how prior parenting decisions have been made. Successfully redefining their role includes managing the loss of relationships (with their partner, extended family, and friends), changes in their relationship with their children, and access arrangements. Negotiation of this process can lead to shared decision-making, participants say, when the focus is on the needs of the children, first. The following example illustrates this view: “Well, I think to put it simply, uh, especially in the case of custody, the adults need to put their personal feelings and desires aside, and simply do what is best for the children” (Father, custody parent, one child; access parent, one child). When this is not the focus, parents say shared decision-making becomes difficult.
Participants in the study suggest that having contact with their child is important to them and is part of how they define their role. Given this notion, the ways in which access is managed can be a critical part of parent/child relationships and also seems to define participants’ ability to navigate beyond this stage in their relationship. For example, when participants are able to agree on parenting time arrangements, they are better able to negotiate other child-related decisions. The majority of participants believe the children maintain relationships with both parents when the needs of the children come before the needs of the parents in parenting, as one parent explains: The kids would be coming with me because I had more of a support system . . . we had both agreed . . . . What I was offering with the kids was access anytime she had ever wanted . . . or also too she had said, you know, this is the date when I will pick them up . . . We had a written separation agreement before the divorce . . . I think it went relatively well. (Father, custodial parent, two children)
The importance of agency
When parents are involved in decisions for their children and feel they have choice in the decisions, they assert that they can achieve agency. Exercising agency is important for participants to be able to work together with the other parent, and the determinant of their ability to share decision-making. A critical component of this path that leads to shared decision-making is the focus by both partners on the needs of the child.
Parents are clear that they want to be involved in the decisions about their children, particularly in terms of having input or choice when decisions about child custody are made.
We were able to both agree, and even if we disagreed we were able to you know, voice our opinion, and state our case right. But that was like I said (name of child) was only at that time, probably 2 so there wasn’t very much decisions to be made at that time, except for the daycare and at that time we both . . . felt that the daycare that he was going to at the time was fine. It was good, right, ’cause I felt like I had a say in what was going on within my children’s lives and it felt that I had an impact, right. (Father, access parent, 2 children)
Having someone who is focused on support rather than competition to guide them through this process with the goal of helping resolve differences between partners can shift the focus to the needs of their children. In addition, a process that provides education and information that they can incorporate into their decisions, participants offer, can be helpful. The following two participants describe aspects of this process that may be helpful. The first example, a custodial mother of four children, suggests that participants view the mandatory information sessions as an opportunity to support parents in their ability to work together. “So, for each participant, you know, and to view them not, to view themselves as participants rather than combatants or opposed, they want to participate in their children’s futures.” The second example illustrates that participants want support through learning skills such as communication that may facilitate working together with their ex-partner.
Obviously with us it’s the communication part, but it could be educational as well as what would be best for the kids. Because I think we all get caught up with the process, we forget about the decisions that we have to make. I think that having that third party there who is not partial to either side would make a huge difference. (Mother, custodial parent, two children)
Shared decision-making
According to participants, parents who focus on the process of decision-making, such as the inclusion of their ex-partner in discussions, listening to the needs of all involved, and those who compromise, are able to share child custody decision-making. Participants acknowledge that this can be a very challenging process, especially during a time when they do not have positive feelings toward their former partner. For some, it is simply not possible, and for good reasons, such as in situations where safety is a concern. For others, they say it requires a level of maturity that allows parents to set aside the personal differences between the adults and focus instead on the needs of the children, first, as is illustrated here: We work well together when we’re making decisions for the children. Even if I were to get full custody, I would never make a decision without him. These are not just my children. We’re going to have to figure it out because you get one shot at parenting. You have to love your kids more than you hate your partner. (Mother, custody undecided, two children)
Separating from a partner can be a significant change for parents and it takes some time before they feel emotionally ready for their new family life. When parents are emotionally ready to coparent, they are able to agree on decisions together, and they identify that this is less stressful, financially more manageable, and beneficial for adults and children as we hear from a father who has access with two children: “My lawyer said you know what, why spend all of these thousands of dollars and fight over full custody if you two could agree on most things.” Similarly, a custodial mother of two children suggests that, when they are able to agree on matters with their ex-partner, it benefits themselves and their children: “I’m much more relaxed, I’m not as tense, as miserable, and I see that reflecting on the children.”
Focus on the Needs of Self, First
Redefining role
Participants also describe their experiences in child custody decision-making when the focus is on the self. When participants make decisions that take into account their needs first, rather than the needs of children, they report that they are not able to come to agreement with their former partner. This can occur when parents are not successful at redefining their role. When parents are not settled with decisions around parenting time with the children and their newly defined parental role, shared decision-making is not possible, as is illustrated through this parent example: She is making the whole, the decisions by herself. And, uh, I’m not involved whatsoever even though she does so many things that actually need my input . . . . And I just want the decision-making, ’cause I just feel that she just bases her decisions on how she basically feels and doesn’t consider the impact it is having on the kids. Both parents should be given an equal opportunity to be making decisions for the kids. (Father, access parent, two children)
Participants emphasize that this can lead them to face a number of barriers to shared decision-making where they find themselves in the middle of a battleground.
The battleground—Barriers to shared decision-making
Participants have experienced barriers to shared decision-making, including areas of disagreement and the means by which they demonstrate that disagreement. Areas of disagreement include parenting, finances, and new partners. In demonstrating these areas of disagreement, participants may focus on their own needs. At these times, they note the communication with their ex-partner is strained and reduced, and can affect the children, new partners, or other adults as they may be unable to participate in decisions together regarding their children.
Parents liken their experience with child custody decision-making to a battleground when there is conflict in their relationship. They use language such as “control,” “fighting,” and “custody battle” to describe their difficulties as frustrating and stressful experiences that often lead to exhaustion. As one participant says, It’s exhausting when you have to create a file of, of, of, really nonsense. It does lead to more conflict and then at that point, I, ah, ignore everything that she says because there is nowhere in the court order that that is required. (Father, access parent, two children)
Many participants describe feeling disillusioned with the court process. They have expectations that following the process will result in a fair outcome regarding the decisions made for their children; yet, their experience deviates in actuality from their expectations.
The number one thing that really shocked me when you asked the question was that I really thought our Ontario court, lawyers, justice and all this, would really step in and kind of say, “OK, here’s what’s going to happen now.” There’s children involved and I really thought there would be some sort of authority and, we have rules and we’ve gotta do this, etc. But that’s really not what happened. There really seemed to be a lot of game playing and all these affidavits and he contested it, so I couldn’t go through with it. Our house was sold and he didn’t want to share half of it because it was in his name, so that just got put frozen in a trust fund. I was really surprised how it’s almost like the whole experience depended on how good your lawyer was. That was the biggest shock to me, the injustice of it all . . . Can I wish to overhaul the whole court system and everything? (Mother, custodial parent, two children)
One can imagine that the feelings that participants have expressed influence the ways in which they are able to work together and focus on the needs of their children. Disappointments through unmet expectations combined with strong feelings about one’s own experiences can negatively affect relationships between coparents, particularly when adults are focused on their own needs over the needs of their children. Thus, communication issues can arise.
Complexities involved in shared decision-making
The complexity of decision-making in child custody extends beyond the parents. When one or both partners choose to separate or divorce, decision-making can happen together or alone. While decisions are being sorted, children have to adjust to adult decisions of parenting time with potentially different parenting styles. This transition period can be unsettling for children.
Participants in this study reveal decision-making alone can be burdensome. When parents make decisions alone instead of together, they can seek support through other people such as new partners or community supports.
As a result, sometimes one or both parents feel they are left out of the decision-making process. The first example is from a custodial mother of four children who experiences decision-making through the legal process: “I was not in a position to advocate for myself or my children. I was pretty much railroaded from the beginning. My lawyer said, ‘Basically, you have no choice.’” Below is another example of a participant involving a number of community professionals in the decision-making process.
I got the CAS involved because there is no communication, there’s no ability for us to communicate or to try to work through this. I have to go through a third party, waiting for the, uh, the Office of the Child Advocate to, uh, assess the situation and make a decision. (Father, custody one child, access one child)
At times, it may appear to participants as though their life has been put on hold while they wait for others to make decisions about their children.
I’m waiting around for the phone to ring, for my lawyer to get back to me about something and living in fear. I did have fear of, I have no control. Two years went by and he couldn’t contest it anymore. I would say the lawyers [made the decisions] and then they were just trying to get our consent. (Mother, custodial parent, two children)
Participants find themselves in a position of complying with rules and decisions with which they do not agree, increasing conflict between the parents. The very thing that they say that they want, to be involved in decisions about their children, is now out of their control.
Discussion
The parent perspective is captured in five central themes highlighting the gap between the child-centered focus, and the self-centered or parent-centered focus of decision-making. A child-centered focus meant that parents understood the importance for the child in maintaining familiar relationships after family breakdown, including contact with both parents, extended family, and friends. In addition, a child-centered focus includes parent involvement in decisions about their children, that they take responsibility as parents for making decisions together, decisions that reflect the needs of their children for love, care, and safety, and when they are unable to do so, parents seek support to compromise and resolve their differences. The self-centered focus meant that parents had not yet come to a place of letting go of their former life as a parent and have not moved forward with a new understanding of their role as a parent, one that is different from before that still requires them to be active parents with responsibilities for their children, particularly around decisions that impact their children. This very stressful time can result in parents focusing on their own needs, preventing achievement of shared decision-making as a result of (a) poor communication, (b) inability to share power, and (c) structures based on patriarchal values that support win/lose outcomes for parents. The focus on self results in a lack of compromise around decisions for the children, as they are only able to observe the situation from their advantage point. Whereas the child-centered focus results in resolution, a self-centered focus increases and maintains the conflict between parents with little regard for the impact of the conflict on the children.
Most of the study participants (n = 14), both mothers and fathers, say their preference is to share decision-making, and they prefer for their children to have a meaningful relationship with both parents, if possible; 15 of participants say they would have preferred to have a shared parenting arrangement. For some, the level of conflict is too great. Significantly, the majority of participants expressed high or extremely high levels of conflict despite their separation for more than 3 years. This insight adds to previous research that found conflict is common between couples after separation and for the first few years (Kelly, 2000), and that parents experiencing moderate to high levels of conflict settle into their new family lives and focus on discussions regarding the children (Maccoby & Mnookin, 1992). However, for many parents in the present study the conflict, as they identified it, did not settle with time.
One of the most important considerations from this study is the need for social workers to support parents involved in post-separation high conflict. For example, helping parents to focus on the needs of children, first, can support parents in their ability to make decisions together, which for many in this study is their preference. We learned from parents in this study the critical nature of redefining their role as a parent. Post separation, it takes time to sort out new relationships between the parents, and between parents and children, particularly regarding time with their children. Previous research indicates that parents experiencing high conflict struggle to separate the children’s needs from their own (Johnston & Roseby, 1997). Indeed, parents in this study said inclusion in decisions that involve time with their children can result in their willingness to negotiate together, whereas lack of choice in decisions leads to greater conflict. This finding is particularly interesting when considering studies by Timms, Bailey, and Thoburn (2008) and Campbell (2008) to understand the perceptions of children in the decision-making process of divorce, as children want a voice in the process of decision-making—not necessarily to be the decision-maker, but rather to have their views considered in the process. In addition, Wallace and Koerner (2003) note that judges acknowledge being directed in their decisions for custody based on the child’s age, development, and stated wishes. Furthermore, the authors write that judges acknowledge a shift in thinking from who will raise the child, to how the child will be raised by both parents (Wallace & Koerner, 2003). There is a clear expectation from the court for shared parenting; parents need to be able to manage this expectation. Parents tell us that their focus on self, first, when it comes to parenting, finances, and new partners can feel like a battleground, which is compounded by the gap between their expectations of the legal process and their realities gaining control over decisions about their children, reducing their chances at effectively coparenting. This is a particularly important finding given a qualitative study of child protection service (CPS) workers who discussed the significant strain on their physical and emotional resources when engaged with families experiencing high conflict (Saini et al., 2012). These workers revealed a lack of training and experience, in addition to the significant pressure they feel from the legal community to take positions about child custody for which CPS workers believe that they are not adequately qualified (Saini et al., 2012).
Limitations and Contributions
The study has some limitations as well as contributions. The sample size is small and represents the voices of the 18 participants. In addition, study participants were not recruited specifically from shared parenting arrangements, but rather from two different courts; yet, all had participated in the mandatory information session. These differences were not distinguished in this study given the exploratory nature of the research question and purpose of the study, which did not differentiate among participant experiences.
This is the first time that parents accessing court services have been asked about their perceptions and experiences of child custody decision-making utilizing a qualitative study, specific to shared decision-making, to gain an in-depth understanding of the parent experience. The thoroughness of the member check process added strength to and confirms our understanding of the parent experiences. The importance cannot be overemphasized because it extends our understanding of (a) the challenges parents engaged in high conflict are experiencing and (b) critically appropriate societal responses in terms of policy and practice to support all family members. This shifts the focus from a deficit-based approach of blaming and pathologizing the family to a strengths-based approach of care and support of healthy families and healthy societies.
Implications for Social Work Practice
A focus on the needs of children, first, means parents experiencing high conflict still need to provide a healthy environment, to productively and safely address conflict, and consider alternatives to litigation such as child-focused mediation and child-centered parenting plans (Birnbaum & Saini, 2015). Many study participants agree that a child-focused approach or a focus on the needs of children may reduce adult conflict and provide for the involvement of both parents in the lives of their children. The experience of redefining who parents are in their new family situation is paramount and an important distinction for social workers to understand when working with families experiencing high conflict, including in child welfare.
Social workers can support families experiencing high conflict by facilitating education about the divorce process. Education can include information about the divorce process; legal/mediation services available to families; challenges parents, children, and families experience such as loss of roles and relationships; and supportive services to navigate the process during and after child custody decisions have been made. In addition, social workers can provide skill development to improve communication between parents in their efforts to work together on behalf of their children. For example, participants reveal that there are specific things that could help them to achieve shared decision-making: (a) the ability to develop positive communication skills, and (b) better understanding and education about the legal processes, the impact of divorce on children, and parenting time arrangements to meet the specific needs of their family. This means when social workers pay attention to situations of high conflict, they can appreciate that parents may be under significant stress long after the separation is over, allowing greater support to families who are not yet emotionally ready to work together. Failing to support parents, participants contend, can lead to increased conflict in the family. As social workers, we can understand this to be a social injustice to families experiencing high conflict.
Parents in this study discuss the multiple people and complex legal and social systems that can become part of their lives while decisions about the children are being sorted. Social workers can coordinate community providers and services to support families experiencing high conflict. In addition, social workers can provide education for professionals in both fields for clarity in differentiated approaches. Finally, a coordinated community response can also inspire collective action toward legislative reform. Given that we know children from high conflict families can do poorly and that high conflict can last for extended periods of time for some families (Kelly, 2000), a focus on the reduction of parental conflict will be an important consideration for policy, practice, and research based on the parent experience.
Conclusion
Canadian social policy in child custody decision-making sets up unrealistic expectations for some parents who are ending their relationship. The policy goal of maintaining meaningful relationships among children and their parents in the midst of the turmoil that families can experience when they separate may not be reasonable, and for some may not be possible. Legislative reform to the Divorce Act, such as is being proposed in Canada by Bill C-78, whereby child custody and the needs of children are central to amendments, can be influenced by the varying experiences of parents, allowing them to participate meaningfully in the process and make good decisions on behalf of their children.
Two of the many strengths that social workers bring to their work are the ability to bring people together to find solutions to challenges, and advocacy. By understanding the parent experience in child custody decision-making for families engaged in high conflict, social workers can begin to rally together colleagues in the social service and legal professions to consider the ways in which solutions for supporting families engaged in high conflict can be conceptualized, created, and maintained in communities. These locally developed collaborative efforts can also be used to advocate for legislative change to support win/win possibilities for families. Participants support the notion put forward by Fehlberg et al. (2011) that families experiencing high conflict want both parents to have contact with their child, yet do not necessarily want this to be reinforced in legislation. Participants have suggested that parents would need to gain further information and skills to improve their communication and decrease their level of conflict. When social workers understand the challenges for families engaged in high conflict, they will be better positioned to partner with the families around appropriate community supports.
Footnotes
Disposition editor: Sondra J. Fogel
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.