Mothers are most likely to get custody following separation or divorce, according to a new study [1]
of rulings by the family courts.
The study also found that maintenance payments to a former spouse are very rarely ordered in Irish family law courts. In the 87 separation and divorce cases studied, there was a spousal maintenance agreement in just two cases. It also found that child maintenance payments, when awarded, varied considerably, and in some cases were in arrears..
The study, carried out for the Minister of State for Children, shows that joint custody and shared parenting arrangements were the most usual outcomes.
However, ‘joint custody’ was understood as joint legal custody, and in 63 of the 70 cases the children lived mainly with their mother. Only in six cases did they live mainly with their father. The dominance of the mother stemmed from her being the primary carer pre-separation, and the spouse most likely to stay in the family home.
However, it also found that in eight cases the parents decided to share the care on an almost 50:50 basis. In a further four cases, one parent had the children at weekends. Older children chose where to spend their time.
The authors of the study, Dr Evelyn Mahon of Trinity College Dublin, and Elena Moore, a research graduate attended 134 cases in three Circuit Courts over 15 weeks in 2007, noting issues relating to separation, divorce, maintenance, custody and access.
Eighty-seven of the cases were analysed, and joint custody was awarded in 70 of them. Sole custody arose in 11 cases, normally where one parent posed a risk to the children, or where there had been paternal desertion of the family. In the remaining cases, the children were older teenagers and the courts were reluctant to make custody orders.
The most common description of access was “liberal” or “flexible”. In a minority of cases there was ongoing controversy about access because of issues like the relocation of the primary carer or claims of unfitness on the part of one parent.
The study found that in such cases the dominant judgment of the court was to promote access initially on a limited basis, with proposals to increase access later. The courts upheld and promoted the right of the child to have contact with both parents following separation and divorce.
The authors found mothers were more likely to stay in the family home. This was the outcome in 33 of the 63 cases where the family home was an issue, while the father stayed in it in seven of the cases. About half these mothers remained in the family home as part of a compensatory package (in lieu of maintenance). In the other cases the mother bought out the father’s equity.
Child maintenance was paid in 54 of the cases, with the amount varying widely.The study found many post-separation parents in full-time caring roles were on low incomes unless they were employed or had business income. The lack of spousal maintenance suggests that mothers were expected to earn their own keep by taking up employment, the study says.
The full report is on the website of the Minister of State for Children.