University of Leeds, U.K.
Drifting towards Shared Residence?
To be published in Family Law, Vol 33, December 2003, Professor Carol Smart, Dr Bren Neale and Dr
Centre for Research on Family, Kinship & Childhood
University of Leeds, Leeds, U.K. LS1 9JT
In 2001 we published the results of two linked research projects on children' s experiences of post-divorce family life (The Changing Experience of Childhood: Families and Divorce, Polity Press). In these studies we interviewed 117 children and young people aged 5 to 20 years (with the majority between 7 and 14) about the arrangements their parents had made over residence and contact and how they felt about spending time with both parents, whether they wanted different arrangements, and what things made their lives easier and what made things worse. Within this overall sample approximately thirty percent of the children were experiencing shared residence arrangements, which meant that they were spending approximately half their time with each parent. This could mean one week with one parent and the following week with the other, or half a week with each, and even some situations were children spent alternate nights with different parents. Sometimes these shared arrangements were based on a 60-40 split of the child' s time rather than an equal 50-50 split.
It is important to clarify our terminology at this point. By shared residence we mean arrangements where children spend half (or more or less half) their time with both parents. From the child' s perspective of course this is not shared residence so much as dual residence and arguably this is a much more accurate term. Thus we suggest that we should acknowledge that when we use the term shared residence' we are adopting the perspective of adults rather than children and that this may, in itself, be problematic. Shared residence is not, of course, the same thing as shared parenting. Shared parenting does not require that children have to spend an equal amount of time with each parent. Shared parenting is defined by degrees of emotional bonding and closeness, not by hours and days. In our studies we have found that children who have one home' can easily feel that they enjoy shared parenting and so it is important that we do not, in policy terms, allow a slippage in terminology that makes it appear that only shared residence can achieve shared parenting.
When we started our research in the mid 1990s the idea of shared residence was novel but it is now becoming more acceptable and in time it may even become the norm if we continue to drift towards it. There is now a growing lobby (recently championed by Sir Bob Geldof) which argues that shared residence should be automatic and, in Australia, Prime Minister Howard has set up a Senate Committee expressly to look into whether Australian Family Law should be changed so that all children will automatically be shared' in this way on divorce or separation unless there is strong evidence to support an alternative arrangement. Central to the idea of automatic shared residence is the presumption that it is a measure that is best for children, and that it maintains proper parental relationships with children after divorce. The drift towards shared residence is therefore seen as a child-focussed measure which will improve the quality of their lives after their parents separate. Recent case law (Re F (Shared Residence) July  Family Law 543) suggests that this arrangement is now even approved by the courts where parents live a considerable distance apart. In this context, the results of our follow-up study of children may seem a timely contribution to the ongoing debate about residence and contact.
In 2001 we re-contacted 60 of the children who had been part of our original study, 30 of whom had been in shared residence arrangements. These 30 children (12 boys and 18 girls) were from predominantly white, middle class families, were in the age range 11 to 21. Our purpose was to find out whether their experiences and views had changed over the 3 or 4 years since our first round of interviews. In particular we wanted to discover what it was like for children to live out the arrangements that had been made for shared residence over a period of time. In family law the focus of judges and legal practitioners tends to be on the issue of dispute resolution or, in less contested cases, in reaching a mutual agreement between parents. Although there is an appreciation that children will have to live with these arrangements for many years, a compelling element is inevitably to find a solution in order to allow the family to move on. But the longer term impact and effectiveness of these arrangements is often unknown because there is rarely any feedback on decisions, save for those intractable cases which may return to court. We also know relatively little about the effectiveness of arrangements that have been privately agreed. Thus orders are made, or agreements secured, according to principles which may not actually work well in practice, even if they appear to be excellent in theory.
s experiences of shared residence over time
Of the 30 children who had been in shared residence arrangements at initial interview, 21 were still in this arrangement, four had left home and the remaining five had reverted to living predominantly with their mothers, seeing their fathers occasionally or not at all. At first glance it might appear that since most of these arrangements had been sustained, they were working well for parents and children. However, we found that the children had a wide range of experiences and that it was often the case that, from the child' s point of view, arrangements became increasingly unsatisfactory over time. We therefore attempted to distil the key elements which went to make successful shared residence arrangements and those that made less successful or unsatisfactory arrangements. But this was not as easy at it seemed because we found that elements that some children found positive such as a regular routine' , a feeling of being wanted by both parents, and a sense of fairness could be a source of great unhappiness to others. So for example, a regular routine for some meant they knew exactly what to expect but for others it meant an unbearable and inflexible regime. Some of the children relished the feeling of being loved by both parents and understood shared residence as a manifestation of this, but others felt this as a terrible burden because they became responsible for the emotional well being of both their parents. Finally, some children thought the arrangement was excellent because it was fair for their parents, but others thought it was dreadful because it was incredibly unfair on them.
We shall outline the elements of contentment and discontentment below. Our aim in this is not to try to establish whether shared residence works in an absolute sense, but to try to show that drifting towards or even legislating for a particular arrangement (as might happen in Australia and other jurisdictions) or assuming that shared residence is a simple solution to a knotty problem, may be very problematic for the lives of some children and young people. Our research suggests that it is important to tread carefully in this area and that solutions to these problems need to be based on a knowledge of the parties involved rather than adherence to a single principle or rule (such as equality or equal shares). This is most definitely a situation where one size does not fit all.
Where shared residence works
The elements that contributed to children feeling positive about shared residence were situations where
- the needs of children were prioritised
- there was flexibility over arrangements
- children could feel settled or felt truly at home in both households
In these cases children told us that their parents would often check with them that the arrangements were working well and offered to change or modify them if the child was unhappy. This often meant that children could say they wanted to change over more quickly or that they could pop into the other parent' s house when it was not their turn' . Flexibility was essential as children grew older because they needed space to spend time with friends or engage in out of school activities. Gradually reverting to something akin to a single residence arrangement as children increasingly took responsibility for themselves and their own time was a viable option and was not seen as a threat to the parents and their sense of equality. Indeed it was seen as a perfectly normal part of growing up.
It was also very important for children to feel that both houses were home' and they could enjoy good and supportive relationships with both parents. The quote from Emma, aged 14, below captures all of these elements:
Interviewer: So it' s like a whole week with each parent?
Emma: Yeah but I still see, if I' m at my dad' s, cos my dad works late till about five or something, I' ll go to my mum's after school like to just say hi and drop in and stuff for a while and then I'll go to my dad's. But when I'm at my mum's, if it's like a birthday during the week at anybody' s house, then I'll just go there and just spend a while there.
Interviewer: Do you imagine that's what will carry on happening?
Emma: Probably. They've talked about it to us and they' ve like said Oh do you want to change it and spend like two week somewhere?' Cos it might feel like I' m swapping over too quickly and not getting settled in. But I think that would be just too long to not see each of them .At Christmas, one year I' ll spend Christmas with my mum and New Year with my dad and the next year it will be the other way around. But my dad dropped in like on Christmas day, dropped into my mum's. They didn' t use to, but they've started getting on a bit better so he sort of drops in and has a glass of champagne or something.
This arrangement worked particularly well where parents could get on with each other, enabling children to be much more relaxed about moving back and forth regularly between their two homes. Given the importance of this it does raise questions about the wisdom of imposing shared residence on very hostile or deeply antipathetic parents.
Where shared residence is problematic
We found that children experienced considerable problems when
- the needs of parents were prioritised
- there was inflexibility over arrangements
- children did not feel settled or felt like visitors or lodgers in one parent's house
If the children felt that they were living in two households simply because their parents could not come to an amicable arrangement they could start to feel like pawns in an ongoing war. So, for example, if they realised that each parent wanted 50% of them because they could not tolerate the idea that the other parent had more, they did not feel loved so much as like a possession to be fought over. Moreover, if parents had this mind set and continued to refuse to modify the 50:50 arrangement, it could become intolerable for teenagers who wanted greater freedom from both parents.
Leonie (aged 16): The actual 4 days at mum's and 3 days at dad' s haven't changed. [But] it's got worse over the past year or so. Like I was supposed to be stopping at mum' s on Friday night but the way I saw it, Friday night was the one night that neither person kind of owned, cos they own our days (laughing). She'll say Friday night's my day, which pretty much says, I own Friday. So last Friday I slept at dad's cos I'd been seeing friends. The only way that I could get her to let me stop at dad's was to say that dad was not going to be in. Half and half is fine [but] I just think that now I'm 16 I should have more of a say. If I want to go and stay with my dad on Friday then I think I should be allowed.
Where relationships between a child and a parent were not working well, this was also a source of tension and unhappiness. Sometimes the things that made children really unhappy were quite subtle things of which parents could be entirely oblivious. For example, one girl hated visiting her father' s dirty and neglected house. In another case a father kept his clothes and office things in the room his son was meant to have as a bedroom. This contributed to the feeling that he was just a lodger. Inattentive parents also caused unhappiness. One girl, for example, felt that she was obliged to spend time at her father' s house but he just went on doing his own thing'as if she was not there and ultimately she felt like an unwelcome intruder.
Sophie (15): It was only just at the beginning of this year actually [that I stopped going to my dad's so frequently]. I was just feeling a bit ... I don't know, there wasn't much for me to do and I thought I would have more to do here and because I don't have a computer and I use that for my work and things. And err, my dad was usually doing something else, somewhere else and I was just usually just sitting around doing, you know watching telly or something Often it was that I was downstairs and he was upstairs doing whatever he was doing. I was actually quite depressed and it was getting to me a bit. I don't know I just didn't feel like I was, well, not welcome to come in and invade his space and stuff.
In these situations shared residence could became a burden for young people. Many reported that they could not wait to get to University so that they could stop having to be attentive to both sets of parents and also so that they could cease packing their bags every week. Unfortunately, leaving home did not necessarily bring the regime to an end for it could then dominate weekend visits and the long vacations. Angela, for example, felt that she would never escape the arrangement:
Angela (aged 20): Well (long pause) .My Dad, my Dad is a very dominant and strong personality. My Dad is quite jealous so he gets upset if he doesn't have equal or more more than equal of the time spent with my mother He is a fiercely kind of, I don't know, involved father .
Interviewer: Was this when you were in your teens?
Angela: Yes. And then, I don't remember when the custody changed a bit, because my fianc, I met him in 1998 .before I went to University ..And he ended up moving out of his Mum' s in the south east and came up and lived with me. Which was while I was still at home. So he went back and forth with me, which was mad really (laughing).
And I still have to try and balance [the time]. Christmas is a nightmare. . Last year I saw them both about once a month .which was a bit of a strain really trying to see them so much If I see Mum I have to see Dad. Even now, it is really ugh.'
Our study was not designed to determine whether one kind of post-divorce residence arrangement was better than another. Our focus was on children' s experiences and this gave us the opportunity to understand what it might be like to live one's life across two households over considerable periods of time. We were able to appreciate the costs for children of having to do this, especially in circumstances where parents were inattentive, inflexible and inhospitable. Even where children had good relationships with both their parents, and where they felt that shared residence was a good thing', there were costs for them. They looked forward to a time when they could stop living like nomads.
Perhaps the most important issue that our interviews revealed was that almost all these children found it incredibly hard to try to change a 50:50 arrangement once it was in place. In some cases they knew there would be a violent or angry response from a parent if they tried to change things, or they knew that it would reignite conflict between their parents. But even in happier circumstances we found that they could feel too guilty or too responsible for their parents'feelings to broach the subject. When we asked these children whether they had raised the issue with one or other parents, they would often say that it was not worth doing so as the arrangement would come to a natural end when they left home. They did not want to upset the equilibrium or appear to favour one parent over the other, even though they were unhappy with the situation.
Shared residence is not, we suggest, a magic solution to a difficult problem. To some extent it merely stretches an existing problem across years and it can be the children who have to absorb the pressures. Of course, some children especially pre-teens could be very content with shared residence but, where the arrangement did not evolve over time, its merits began to evaporate. One young woman described to us her unhappy experiences of moving home every week, when we interviewed her in the first study. At follow up she described how she felt when she arrived at university:
Ellie (aged 20): It was the nicest thing. Like for once I had everything in one room like all my clothes in one room. I was settled for the first time in like ten years, I actually felt settled. I actually felt like I was just settled do you know what I mean? ...Not living out of a bag. I lived out of bags for ten years. I've never, I just used to. I lived out of four carrier bags do you know what I mean? .... I would not want to put any kid of mine through what I've been through.
The emotional challenges of sustaining this dual existence over many years should not be underestimated, even where, as in Ellie's case, both parents were loving and attentive. Moreover, the anticipated benefits, namely that this arrangement will foster shared parenting, are by no means guaranteed. Parents who use their children as pawns or who treat them as matrimonial property when the children are 8 or 9, will not necessarily change when the children are 14 or even 18. We should perhaps be careful that, in seeking to solve a compelling problem at the time of divorce or separation, we do create much bigger problems for children in future. Shared residence is not yet the norm in England and Wales, but before we drift too far in that direction, it might be prudent to learn more from those who have direct experience of living their lives under this dual residence' regime.