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Shared parenting doubles in France

March 26, 2014

Shared parenting (résidence alternée) doubles in France

Between 2004 and the present day, shared parenting in France doubled from 11% to over 20%.

As the Tables below shows, official figures released by ‘Statistiques du Ministère de la Justice’ for the number of children in alternating residence type arrangements accounted for 11.5% of all custody awards in 2004 and has climbed to 20% in 2010.

French_1While the Anglo-Saxon world has been fighting like cat and dog – as its opponents fight a rear guard action – over whether to experiment with an allegedly untested format, Belgium and France have quietly got on with it.
It is, of course, a political fiction in Britain to believe that joint physical or equal custody is new; it was a common custody awards prior to the Children Act 1989 as the Law Commission’s own papers reveal. [1]

The full disclosure by the French authorities is, of course, more comprehensive, citing sole mother and sole father custody data. The figures in black (below right) are the known numbers (Statistiques du Ministère de la Justice), and those in red indicate this author’s expected projection that French_2.aJPGmight be expected for 2013 and/or 2014.

Trend

As can be seen in the Bar Chart (below), and by the Trend Line graph (further below), the rate of change is not rapid or revolutionary. This in itself should calm the fears of the more excitable opponents to shared parenting – there will be no sudden and irrevocable collapse in mother custody awards.

French_4Sole father custody, given their small initial numbers, have, if anything, suffered the hardest hit – down from 9% to barely 7% by 2013

Mother custody has only fallen to 72% from a 2004 ceiling of 79% – and probably it was at a higher point than that in 2002. So the lion’s share is still awarded to mothers.

What has happened in the past decade is that the ‘new kid on the block’, alternating residence, has nibbled away at both incumbents.

Missing in the previous Tables is any estimate for what 2013 might represent and so an attempt to remedy this omission is made good in the Bar Chart above by way of an estimated projection, or extrapolation.

The following graphic depicts an estimated Trend line but projected further, into 2014, using data from the Tables above, i.e. 2004 – 2010. This is perhaps more revealing. In percentage terms there is very little change in the French_5overall trends over a 10 year period. The progress shared parenting has made initially will, in all probability, become muted and less pronounced in its acceleration as we reach 2016.

It is most likely that ‘sole father custody’ will remain a minority award and while it will continue to decline it will not become a zero item, due in part to widowhood of the father (life expectancy for working mothers will probably decline further in the coming decades).

Equally, ”sole mother custody’ will steadily decline but it will never fall to 50% in the foreseeable future. It is most unlikely that the blue trend line (right) which stated at 80% will nose dive (even a little) this side of 2020 – and farther into the future one cannot predict.

Backdrop

Alternating residence (Shared Parenting) actually entered into French legislation in March 2002. However prior to that the French family landscape had already changed dramatically when in 1970  ‘paternal power’ (based on who was the “head of household” was replaced by “joint parental authority” (a change that, by today, has overtaken all the EU states). The corollary of this was that women, or mothers, were also entitled to “joint parental authority” – both in marriage and after in divorce.
(At the same time, in France, unlike Germany, the social model of the “male-breadwinner”  began its steady decline in the 1970s following a dramatic increase in the levels of women entering the workforce in the 1960s).  [2]

The new Civil Code stated that:

  • ” . . . . . every father and mother should maintain relations personal with the child and respect the links it with the other parent” [and that] ” . . . . the residence of the child may be attached alternately to the domicile of parents or the home of one of them.”

Overlooked by many is the ‘Washington International Convention’ which binds its signatories to the United UN Charter (and Article 388-1 of the French Civil Code is a consequence). This Convention requires that minors over 5 years of age in France be permitted to apply to be heard by a judge or a person designated on the reality of what they experience in alternate residence, or not, and help illuminate the truth or merits of the parents’ request respectively compared to the well-being of children.

Following the implementation of this law, groups supporting the concept of ‘alternating residence’ continued to advocate for this practice to become the default position – by implication, therefore, it is not the current default position or if it is, then it is far from perfect in its present guise.

Belgium, which was mentioned earlier, it would appear has adopted ‘alternating residence’ as the default position (see 2006 legislation http://sharedparenting.wordpress.com/2012/12/30/24/ and http://fkce.wordpress.com/2009/09/16/00031/ and http://motoristoppression.wordpress.com/2012/07/12/16/ ).

NB. France and Belgium share the lowest marriage rates in Europe and both have very high divorce rates. According to the Le Figaro newspaper, uncontested divorce – which make up 54% of French divorces – take on average only eight minutes  of a judge’s time. Not surprisingly the present Gov’ts outline plan is to have judge-free divorces. French court clerks are reputedly more highly trained than in the UK, so this would make it more feasible for couples to process their divorce as if it were a paper shuffling exercise ( See http://bigstory.ap.org/article/divorce-without-judges-france-puts-plan-forward).

Deeper analysis

“Justice Studies and Statistics No. 23” (issued by France’s Ministry of Justice) carries the headline that:

  • “In 2009, 16.9% of judgments give rise to an alternate residence: the rate was 21.5% in cases of divorce by mutual consent and 4.4% in contentious proceedings.” [3]

This indicates that alternating residence was awarded in only 1 in 5 where divorce by mutual consent (and one has to presume that custody was not an equally agreed matter). This begs the question; “Under what circumstances was alternating residence granted in the remaining 4 out of 5 divorces” (ignoring for the moment the 4.4% as too insignificant).

‘Study No. 23’ goes on to state, as has already be referred to above, that the Act of March 4, 2002 expressly provided for the possibility to choose a residence alternately to children when their parents separate. A survey conducted on a representative sample of decisions can have information on the use of this formula elements.

  •  In the vast majority of cases (80.7%), residence applications for alternating residence are jointly formed by both parents. [Presumably this is 80.7% of the 2009 figure of 16.9% ?].
  • Where there is disagreement between the parents, the residence is held alternately in a quarter of cases (25%), and in the remaining three-quarters of ‘habitual’ residence of the child is secured by one parent, usually the mother (75%).
  • The young age of some of the children involved does not seem to present an obstacle to the joint request of alternating residence: three-quarters (75%) of children were under the age of ten years – with the average age being 7 years. [This rather strikes at the heart of the Tender Years doctrine].
  • Where there is disagreement between the parents (one in five) judges resort to measures of instruction in half of procedures, most often a social survey. [is the author intimating here a ‘background check’ and/or a social services report ?].

Somewhat confusingly ‘Study No. 23’ then states, when referring to the above ‘disagreement between the parents’ that this remedy is more frequent when the alternating residence is accepted (61%) than when it is released (39%) [presumably, ‘not accepted’ is the intended meaning for the 39%]. The study comments that it seems that judges impose alternating residence after having surrounded themselves the maximum information on the situation of parents. Brothers and sister are rarely separated and weekly [as opposed to monthly ?] alternative residence is awarded eight times out of ten.

  • In the vast majority of cases (70%), the awarding of alternating residence is made devoid of any child support (CS) considerations. CS payments are most often less than 200 Euros per child (circa 2012) in France. [One has to assume this is a per month figure].
  • In common with all divorce and custody regime state benefits for parents are paid to the mother, and there is an indication that there might be some tax advantage if they opt for half sharing. [Presumably alternating residence is being referred to here].

In general, the Ministry of Justice’s paper concludes, alternating residence encourages parents to seek a balance in all aspects of physical and financial burden of the child, and while this can lead to more complex calculations for state welfare and CS, it does result in a low parental usage of Legal Aid – figures suggest a procedure total in the region of 5 [five cases or 5% is left unsaid in the text] – which “suggests they have a relatively easy or comfortable financial situation.” [4]

Arguments advanced by opponents of ‘alternating residence’

Before itemising some of the more salient points used against ‘alternating residence’ it is worth recalling the many advantages of having a father’s input in the years when a child is growing.
Various studies conducted over many decades by child specialists have shown that 70% of children who drop out of secondary school (12 – 17yearsold) have no father. The worst thing for a child is to lose a loving parent, and vice versa.

Hundreds of fathers (in France), but also some mothers, commit suicide every year because they could not keep their emotional bonds with their children.

  • Loss of one of the two primary care-giver usually when a child grows up without a father in a single-parent family leads to a higher risk of suicide. Boys in single-parent families or step-families are much more prone to suicide. In addition, youths who do not have their father in their household show a high level of depression and suicide and are also prone to exhibit higher levels of crime (offending).
  • 70% of children want to spend as much time as possible with each of their separated parents [Kruk].
  • 93% of children think that alternating residence is in their best interests [Kelly].

The arguments advanced by opponents of alternating residence are varied but often revolve around the “suitability” of this type of arrangement for separating couples. The inference is that the mother will lose control and be unable to protect the child from physical abuse or violence (the unspoken assumption here is that such paternal violence is endemic and unavoidable in the male psyche).

One can also highlight that opponents of alternating residence particularly oppose the law of 2002, which allows a judge to impose, at the request of one of the parents, alternating residence as an option. Opponents would prefer that alternating residence would be the fruit of a mutual agreement between the two parents – and one can see that as a reasonable theoretical point. However, in the Anglo-Saxon sphere it is clear that opposition to alternating residence is so organised that it would influence not only judges but also mothers into taken an uncompromising mother-only custody stance.

What is not taken into account by these opponents is the ‘wrench’ and sense of abandonment children feel upon the ‘disappearance’ of one of their parents at the time of  a divorce. Attachment theory is a two-way street, and a child develops attachment bonds to both it’s father and mother – and not just its mother. Psychoanalysts make this very clear; the child is not aware of the limits of his body or his mother in the first months of its existence and looks for and develops attachments from any person who can fulfil its immediate needs.

  • “Thereafter, any sudden separation from his/her childhood leads to serious problems such as separation anxiety. . . . .  Based on specific cases of children who suffer from these spatio-temporal oscillations, sometimes imposed by judges who do not take into account too young an age, violence, or conflict, they denounce alternating residence as not suitable for children.” (see http://fr.wikipedia.org/w/index.php?title=R%C3%A9sidence_altern%C3%A9e&veaction=edit§ion=5 )

Opponents of alternating residence also note that the 2002 law ignores biological and symbolic differences that would separate the roles of father and mother. These roles are to be found in the division of labor within the family, opponents argue that alternating residence in most families there is no equality whatsoever for household chores, time spent with children, and that in most cases the care of children within the family is the mother. This is now something of a ‘dated’ argument as modern fathers are far more involved and hands on that fathers were in the 1950s for example (and may perhaps reflects the fact that many of these views were first formulated by opponents who are now of pensionable age).

One of the other main reasons listed by opponents is based on mercenary motives – money. They criticise fathers who seek alternative residence claiming that such fathers are only interested in seeing a reduction in their alimony or child support payments. (This overlooks the point that since the dawn of time and certainly into the Medieval period that the state in order to enforce compliance by fathers under arms have taken their children as hostage, qv ‘Hostage to Fortune’).

Some child specialists opposed to alternating residence are mostly dogmatic psychoanalysts. Most agree that at around the age of 4 years, that the child becomes aware of the existence of his father. Before this point has been reached the child has regarded the father as an ‘auxillary mother.’ In contrast, Françoise Dolto, a research psychoanalyst, says that awareness of the father by the child occurs at walking age, i.e. at about the age of 18 months. And since this is directly linked to more fatherly involvement, it follows that greater attachment develops through the football and bicycle etc, threshold ages.

According to psychoanalyst Aldo Naouri, every child has three parents: 1). a parent father, b). a social father and c). a functional father. Aldo Naouri , the paternal function is a very diverse and flexible function. He claims anyone can fill this function (an uncle, a teacher, a friend of the family, even a grandmother ….), so its universality and flexibility is also its weakest point. But what tellingly emerges from these views is that it is the mother who “recognises that person as having the right to come between her and her child” (the right to come between “her and her child” is worth repeating).

The child specialists opposed to the claims of the benefits of alternating residence are therefore seem by most as dogmatic psychoanalysts.

 

E N D

 

Footnotes:

[1] Law Commission, Supplement to Working Papers No 96 (pub 1987).

[2] Recent reforms in French and German family policies. Similar challenges, different responses http://www.scielo.oces.mctes.pt/scielo.php?pid=S0873-65292010000300002&script=sci_arttext

[3] Department of General Administration and Equipment, Sub-Directorate of Statistics, Studies and Documentation. http://www.justice.gouv.fr/budget-et-statistiques-10054/etudes-statistiques-10058/la-residence-en-alternance-des-enfants-de-parents-separes-11833.html

[4] The residence alternating children of separated parents Justice Studies and Statistics # 23, Ministry of Justice http://www.justice.gouv.fr/budget-et-statistiques-10054/etudes-statistiques-10058/la-residence-en-alternance-des-enfants-de-parents-separes-11833.html

Reference:

1. See also ‘Alternating Residence in Sweden’ https://equalparenting.wordpress.com/2013/09/19/19/ )

2. http://fr.wikipedia.org/w/index.php?title=R%C3%A9sidence_altern%C3%A9e&veaction=edit&section=5

3. http://www.justice.gouv.fr/budget-et-statistiques-10054/etudes-statistiques-10058/la-residence-en-alternance-des-enfants-de-parents-separes-11833.html

4. http://www.scielo.oces.mctes.pt/scielo.php?pid=S0873-65292010000300002&script=sci_arttext

 

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4 Comments leave one →
  1. April 3, 2014 2:04 pm

    Interesting article for France.
    You can find the European study on shared parenting made in 2013 in this website:
    Estudio comparativo europeo sobre la situación de la custodia compartida
    octubre 2013, Parlamento Europeo
    http://www.figlipersempre.com/res/site39917/res666721_europeanchildren2.pdf
    http://www.figlipersempre.com/res/site39917/res663982_ENG-LAST_LAST.pdf

    And precise information about shared parenting in Spain, where some regions have their own specific laws on this matter (Aragon, Catalonia, C.Valenciana, Navarra) and reach rates around 20-30% of joint custodies.
    http://menglassceiling.jimdo.com/custodia-compartida/?logout=1

    https://twitter.com/ML_Rafa_Aguado

    • rwhiston permalink
      April 3, 2014 5:17 pm

      Dear Rafa,
      Thanks for your comments. For those reading this post the first URL , http://www.figlipersempre.com/res/site39917/res666721_europeanchildren2.pdf gives rise to “European Children and the Divorce of Their Parents” and is an article by Vittorio Vezzetti, which – in a small way – I assisted in compiling.
      The other URL, http://www.figlipersempre.com/res/site39917/res663982_ENG-LAST_LAST.pdf gives rise to an agenda of speakers at a Strasbourg conference and I would urge all readers to examine both.

      Vittorio Vezzetti’s paper which, while it does deal with Spain, is a generalised paper mapping out all of the EU, it is not specific to Spain. In such a paper one can only have time for broad brush strokes. By contrast “Shared Parenting in Spain” written a few years earlier (https://equalparenting.wordpress.com/2011/07/15/6/) is specific to Spain and I would value your comments on the assessment made at that time. It is important that changes in the law are made but also that these changes are then acted upon, ie implemented – somthing lacking in some countries (see ref above). So I would like to hear your opinion/experince of how Shared Parenting is working in Spain.

  2. Rafa Aguado permalink
    April 3, 2014 11:05 pm

    Dear Rwhinston,

    thanks for your reply.

    Happy to know you collaborated to prof. Vezzetti in the European study last year, in fact, my colleague Mr Jose Luis Sariego presented the ‘Shared parenting in Spain’ in Strasbourg last month of october.
    His presentation was not in the same sense as you put in your blog. You can see his text in English in this link (also in French):
    http://www.colibri-italia.it/2013/10/23-ottobre-strasburgo-reports-european.html
    (please see the text in detail, because we have a specific situation that doesn’t exist in other european countries: a petition of shared parenting from a father can be easily be stopped by the mother putting with a false accusation of domestic violence; it is estimated that 50% of petitions of shared custody from fathers are ‘neutralized’ by these instrumentalization of the justice)

    In Spain we have now 4 regions with their own shared parenting laws. The more advanced is the Valencian region one. There is a new bill on shared parenting at the national level in project. Feminist movement is against this project of law and, among other items, is against shared law when both parents disagree (obviously, in a divorce, agreement is the exception) and when an accusation of domestic violence (including not confirmed) is made.

    best

    Rafael

    • rwhiston permalink
      April 4, 2014 2:08 pm

      Dear Rafa, has the URL link broken because I cannot get that particular URL to work ? I have tried the others on that page and they seem to work well.

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