legislating for shared parenting: exploring some underlying assumptions

LEGISLATING FOR SHARED PARENTING:EXPLORING SOME UNDERLYING ASSUMPTIONS

Jennifer E. McIntosh

In 2006, the Australian parliament introduced new family law legislation about substantively shared overnightparenting arrangements between divorced couples. Other countries and state legislatures are currently debatingthe merits of similar legislation. A largely unquestionable premise underpins this reform, namely that the majorityof children from separated families demonstrably benefit from the ongoing, warm and available involvementof both parents, in a climate of well-managed interparental conflict. The Australian legislation moves beyondencouragement of shared parenting in divorce cases with adequately functioning parents; it extends into grey areaswhich, to date, remain poorly serviced by credible research, including its application to children of all ages andto parents experiencing significant levels of ongoing conflict. Drawing on data from a longitudinal high-conflictdivorce sample, this article challenges three assumptions that underpin a legislative preference for sharedparenting, that shared parenting is viable and sustainable for divorced parents in conflict, that shared care enablesimproved cooperation between parents, and that as a result children will be less affected by their parents’ conflict.The article further explores the influence of the mediation process on the choice and durability of shared parentingarrangements.fcre_1263 389..400

Keywords: divorce; children; custody; conflict; court; parenting; legislation

THE SPIRIT AND INTENTION OF SHARED PARENTING REFORM

Many family law and allied professionals consider themselves to be practicing in anexciting era of paradigmatic change in legislation and practice involving children’s matters.This generation of practitioners has identified the need for restorative and inclusive familylaw practices. Australian court and community services have evolved specifically aroundthe goals of doing no further harm to already damaged parental relationships, and, wherepossible, positively impacting parental capacities, and giving children a safe voice in theprocess (McIntosh, Bryant, & Murray, 2008; McIntosh, Wells, Smyth, & Long, 2008). Newfamily relationship services in this country now intervene early in the pathway of separa-tion, aiming to keep parents productively involved in their children’s lives. In tandem,mediation is now mandated in most cases before parents are able to commence legalproceedings. Once in the court system, parents meet with a “new look” Court, operatingfrom a set of principles and powers to conduct children’s proceedings in a “less adver-sarial” way (Harrison, 2007). Across communities and courts, the legislation supports theimportance of ongoing co-parental involvement. Australian family law now endorses theactive consideration of equal or substantively shared parenting in most cases where parentsare able to share overall parental responsibility and decision-making (substantially sharedmid-week, weekend, and holiday overnight care of children by their parents, defined by theNational Child Support Agency as a division of care between parents at a rate of 35:65%or higher). This revision in the legislation emerged in response to a number of harsh

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FAMILY COURT REVIEW, Vol. 47 No. 3, July 2009 389–400© 2009 Association of Family and Conciliation Courts

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realities, as documented by the House of Representatives (2003) inquiry into child custodyarrangement. That inquiry identified significant numbers of children growing up withoutsubstantial involvement of their fathers, and widespread frustration among “disenfran-chised dads” whose court outcomes were dominated by ongoing preference for the statusquo, namely primary maternal care arrangements.

The intentions of the amendments to the Australian Family Law Act about sharedparental responsibility and care have been summarised in this way:1

1. To reinforce cooperative parenting through equal shared parental responsibil-ity: Section 61DA(1) stipulates that when making a parenting order, the court “must applya presumption that it is in the best interests of the child for the child’s parents to have equalshared parental responsibility for the child.” Two clearly stated exemptions include reason-able grounds to believe that a parent has engaged in child abuse or family violence.2

2. To encourage continued involvement by both parents in decision-making: Anorder for shared parental responsibility creates obligations to share major, long-termdecision-making. Section 65DAC requires in all matters where shared parental responsi-bility applies, that major, long-term decisions be made “jointly by the persons who havesuch parental responsibility.”3 Parents are required at minimum to make “a genuine effortto come to a joint decision about the issue.”4 Failure to do this would be a breach of theorder, potentially attracting penalties.5

3. To encourage real-life relationships between children and their parents: Section65DAA states that in cases covered by the presumption in favour of equal shared parentalresponsibility, the court “must consider” making orders that the child spend equal time, orif not equal then substantial and significant time, with each parent. “Substantial andsignificant time” is defined to mean, essentially, weekdays, weekends and holidays, timesthat allow the parent to be involved in the child’s daily routine as well as occasions andevents that are of particular significance to the child or the parent.6 Related to this, Section63DA requires all advisers (legal practitioners, family counsellors and mediators) to informtheir clients that they “could consider” equal time, or substantial and significant time, ifeither is reasonably practicable and in the child’s best interests.

4. To consider all arrangements for the child’s care with regard to the best inter-ests of the child: Section 60CA provides: “In deciding whether to make a particularparenting order in relation to a child, a court must regard the best interests of the child asthe paramount consideration.”

What the legislation does not say: Such powerful, socially constructive legislation isproblematic not so much for what it says (that co-parental involvement is good for parentsand children), but for what it does not say (for example, that cooperative co-parentalinvolvement is not possible for all parents, and ongoing inability to cooperate may haveimplications for children in substantively shared arrangements). The Act specifies twoprimary considerations designed to guide interpretation: the benefit to the child of ameaningful relationship with both parents, and protection from violence and abuse; theseare then followed by “additional considerations,” including the views of the child. Throughthe lens of developmental practice and research, the guideposts within the legislation foridentifying children and parents for whom substantially shared parenting does not representthe best way forward are at best vague. Answers to these complex questions require thecareful consideration of detail, yet ironically, family law decision-making ultimatelyrequires a radical reduction of detail, to create an outcome defined by the clock and thecalendar. Moloney (2008) observes that the new legislation, accompanied by recentchanges to the Australian Child Support payment scheme (which now firmly ties the

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amount of money that non-resident parents contribute to their child’s costs to the numberof hours they spend with them) have together moved “time” into the centre of negotiationsabout caring for children, and he aptly summarises the conundrum for children thus:

My own view is that the term ‘equal time’, which was inserted into the legislation almost at thelast moment, is a distraction away from the core issue of children having an ongoing relation-ship with both parents—and with others such as grandparents who might be very important tothem. ‘Equal time’ represents a reductionist approach to parenting, which borders on treatingchildren as commodities. The wording, I suspect, grew out of an anxiety that without such afixed numerically-based starting point, judges would default to the maternal preferenceapproach that characterised at least the first 25 years or so of the existence of the legislation.

CONFLICTING GUIDANCE FROM THE RESEARCH LITERATURE

Shared care is an increasingly favoured solution for preserving parent-child relation-ships post divorce, bringing with it both opportunity and risk. The obvious benefits forchildren include the presence of two active social and family support networks, increasedattention and stimulation, and male and female gender role modelling. Parents are able toexperience the gratifications and rewards of “real time” parenting and to eliminate thestresses of primary parenting (Pearson & Thoennes, 1990). The shared care ideology mayaddress the real psychological and social needs of contemporary mothers and fathers tocreate a balance between work and family, and to allow fathers to establish a different levelof involvement that may indeed be more gratifying than that which they experienced inmarriage (McKinnon & Wallerstein, 1986).

In circumstances of cooperative self-selection into shared care arrangements, this struc-tural solution to separation can allow a child to actively maintain positive, reality basedrelationships with both parents (Bauserman, 2002; Luepnitz, 1991; Smyth, 2004; Stein-man, 1981) that run less risk of the depleted emotional availability associated with singleparenting (Hetherington, Cox, & Cox, 1985; Pearson & Thoennes, 1990).

Research commentaries on children’s outcomes converge around the importance ofparenting and relationship qualities and psycho-social resources above the sheer structureof care arrangements (Bauserman, 2002; Johnston, 1995; Pruett, Ebling, & Insabella, 2004;Pearson & Thoennes, 1990; Smyth, 2004). Smyth (2004) points to key structural andrelationship resources that contribute to the durability of shared parenting arrangementsover time. In a review of care and contact patterns encompassing both national populationdatabases and in-depth focus group studies with 54 parents in shared care arrangements,Smyth found that prior to the introduction of the new legislation, substantially or equallyshared care (between 5 to 7 nights a fortnight with each parent) was “relatively rare,”occurring in about 9% of the general population of divorcing families in 2003. It was aparenting arrangement that proved viable for a small and distinct group of families, whoshared the following profile: electing a shared arrangement, as opposed to having legallyenforceable orders to adopt such an arrangement; geographical proximity (within a mod-erate car trip); the ability of parents to get along sufficiently well; a business-like workingrelationship between parents; child-focused arrangements; a commitment by everyone tomake shared care work; family-friendly work practices for both mothers and fathers;financial comfort (particularly for women); and shared confidence that the father is acompetent parent.

McIntosh/LEGISLATING FOR SHARED PARENTING 391

Based on the findings of two separate studies of high conflict mediation and FamilyCourt samples (237 families in total), McIntosh and Chisholm (2008) suggested theaddition of several psychological filters, including: adequate emotional maturity of eachparent, seen in each parent’s capacity to operate from their child’s best interests, rather thana fixation on achieving parity or equity of time; parents’ emotional availability to the child,as experienced by the child; managed inter-parental conflict and contained acrimony; ashared perception the child is safe with their other parent; and the child’s own happiness orcontentment with a shared arrangement.

From the developmental perspective, some research suggests regular sharing of chil-dren’s overnight care between parents fosters closer and ultimately more enduring parent-child relationships (Lamb, Sternberg, & Thompson, 1997; Maccoby & Mnookin, 1992).Kelly and Lamb (2000) support the view that young children’s attachments to their parentsare fostered by shared schedules. This holding true for some, the literature also providesconsistent evidence of risk pathways for some families in shared arrangements. A cluster ofdevelopmental arguments against presumptions of shared parenting surround the disruptivenature of this lifestyle for young children, adding increased challenges and risks at a timewhen children’s cognitive, social and emotional development are reliant on stable, respon-sive care (Pruett et al., 2004). In a study of infants in separated/divorced families who hadregular overnight visits with their father (n = 44) and infants in a married comparison group(n = 52), Solomon and George (1999) conclude that “repeated overnight separations fromthe primary caregiver are associated with disruption in mother-infant attachment when theconditions of visitation are poor, that is, when parents are unable to provide adequatepsychological support to the child” (p. 2). Solomon and Biringen (2001) also challenge theKelly and Lamb (2000) perspective, highlighting empirical findings regarding differencesin the development of infant attachments with their mothers and fathers, young children’ssensitivity to overnight separations from their primary caregiver, and the possibility thatinfants have a preference for primary caregivers over secondary caregivers during stressfulsituations. Other documented risks for children include an increase in their loyalty con-flicts, exposure to ongoing complexity and conflict in parental decision making, andbearing the burden of the organisational load (remembering belongings, school work, etc.)(Pearson & Thoennes, 1990).

In addition to these normative concerns, the literature is stronger on the poor fit betweenshared parenting and unremitting post-divorce conflict. Beginning two decades ago,Johnston and colleagues (Johnston, 1995; Johnston, Kline, & Tschann, 1989) identifiedcautions against substantively shared parenting for children whose parents’ ongoingacrimony and inability to encapsulate their conflict meant continued exposure to toxicinter-personal dynamics and the diminished responsiveness of each parent. Others haveidentified elevated stress and anxiety for parents concerned about their child’s well-beingin the care of the other parent, unwanted reduction of the maternal role, elevated conflictbrought about by the frequent communication and decision making required inco-parenting, and continuing abuse of power by controlling or violent ex-spouses in thatprocess (Benjamin & Irving, 1989; McKinnon & Wallerstein, 1986).

While progressing with time, the shared care literature remains difficult to navigate,particularly for legal advisors and judicial decision makers who do not have a clinical lensthrough which to filter the developmental issues. Consensus around the nature andmagnitude of outcomes for infants and children in shared arrangements is some way off,particularly given that sound answers will come from longitudinal rather than cross sec-tional research, with studies that consider the complex matrix of interaction between


time-share agreements, parenting histories, qualities and relationships, and the develop-mental stages and needs of children.

RATES AND PATTERNS OF SHARED CARE IN HIGH CONFLICT DIVORCE

The attributes that increase the likelihood of shared arrangements working smoothly(see Smyth, 2004; McIntosh & Chisholm, 2008) are not typically characteristic of parentswho litigate or who otherwise require significant support to determine and administer theirpost-separation parenting plans. Yet several sources point to steady increases in rates ofshared parenting in populations of disputing or litigious parents and in the general popu-lation (Melli & Brown, 2008). The Child Support Agency in Australia is the authorisedgovernment agency that registers and monitors the exchange of parenting payments fromone parent to another for families who need this kind of assistance. Amongst this popula-tion, Smyth (2009) reports that rates of newly registered shared parenting agreements havealmost doubled in five years, and are now around 17% of the CSA population. At thelitigious and high conflict end of the spectrum, in a review of two separate Court andMediation samples, McIntosh and Chisholm (2008) found that shared parenting was themediated outcome in 27% of 183 mediation cases, and was court ordered in 46% of 54Family Court cases studied.

With growing rates of shared care arrangements, a number of questions are important toconsider. Given conflicting beginnings, do these arrangements last? When they do last,does a shared arrangement facilitate greater cooperation between parents over time? Howdo family law interventions influence the adoption and durability of shared arrangements?

For the remainder of the paper, the above questions are explored with data from a highconflict mediation sample. The sample is drawn from a longitudinal study of 183 familieswho attempted to mediate their arrangements through two different interventions. Thefindings presented here are not definitive, but are reported to further the current dialogue onlegislative support for shared parenting, and the next generation of research questions thatneed to be asked about it.

THE HIGH-CONFLICT MEDIATION STUDY

The study referred to in the remainder of this paper was designed to explore the impactsof two distinct mediation interventions on parent, child and family relationship functioning:child-focused mediation and child-inclusive mediation.7 These two interventions, theirselection criteria, and demographic characteristics of the sample are detailed elsewhere(McIntosh, 2007; McIntosh, Wells et al., 2008). A brief summary is provided here for thepurposes of this discussion. Two treatment samples were recruited across three cities usingidentical criteria, and cases allotted by calendar allocation to one of two interventions(Child-Focused families in the first half of the year, Child-Inclusive in the second half of theyear). The two groups did not differ significantly on demographic, marital history ordispute characteristics variables. Parents in both treatment groups were actively encouragedto base their negotiations about parenting agreements upon their children’s needs and todeal productively with the acrimonious nature of their dispute. The child-inclusive treat-ment was distinguished by the addition of a specialist social scientist, who conducted aprivate, semi-structured interview with the school-aged children affected by the dispute.


For the Child-Inclusive treatment group only, information from the children was formu-lated and discussed with their parents by both the child specialist and mediator in acarefully managed feedback conversation, designed to assist parents to gain greater insightinto their own children’s experiences and to shape the parenting negotiations around theirchild’s views and unique developmental needs. An identical interview was conducted withchildren from the Child-Focused group; however the resulting information was used forresearch purposes only and was not shared with parents. One year postmediation outcomesfrom these two interventions are described elsewhere (McIntosh, Wells et al., 2008), andreports of findings from the four year follow-up are forthcoming.

For the purposes of this paper, a subsample of 141 families (n = 276 children) wasdrawn, based on the presence of complete research data at three time intervals: pre-mediation, 1 year and 4 years postmediation.

DURABILITY OF SHARED PARENTING IN THE HIGH-CONFLICTMEDIATION GROUP

At intake, 59% of mothers and 42% of fathers in this sub-sample reported very highto extreme levels of acrimony and conflict with their former spouse (Acrimony Scale:Shaw & Emery, 1987; Conflict Scale: McIntosh & Long, 2003). Sixty-three percent ofmothers and 50% of fathers reported extremely low co-parenting alliances (Abidin &Bruner, 1995). Mean conflict and acrimony levels for the remainder of the sample weremoderately high.

Given conflicting beginnings, did substantially shared overnight arrangements last forthese families? Of this sample of 141 cases, 48% (n = 69) left mediation with a sub-stantively shared overnight arrangement of 35 : 65% share ratios or greater. Neithermother nor father reports of conflict, acrimony or alliance differed significantly betweenfamilies who negotiated shared care and those who did not. In this sample therefore, thestarting equipment was not significantly “better” for parents who went on to a sharedarrangement.

Only one third of the families who attempted a substantially shared arrangement went onto maintain that arrangement throughout the year after mediation (n = 23 of 69). Stabilityof shared care rates was 2.4 times more likely in families who had voluntarily entered thisarrangement prior to mediation, that is, parents who had self selected into shared care. Themost stable arrangement over the first year following mediation was for care of less than a35 : 65% ratio (45% of families, n = 64/141). Parents were significantly more likely to entershared arrangements with children under 7 years of age, and to revert to primary parentingformulas (typically 2–3 overnights per fortnight with the nonresident parent) by the timechildren were 11 years old.8 Single children without siblings were more likely than siblinggroups to enter shared care arrangements across the 4 years of this study (55% of childrenin sibling groups and 81% of “only” children entered a substantively or equally sharedarrangement9). Gender of the child had no effect on retention of shared care arrangements.

In a further follow-up of this sample 4 years after mediation, complete data wereavailable for 123 families (n = 247 children). Full analyses are currently underway, butsome early trends are noteworthy for the purposes of this discussion. Four years post-mediation, changing or evolving patterns were more common in this sample than werestable arrangements, with 45% of families having changed their care pattern at least twicesince mediation. Thirty-eight percent (38%) maintained a primary parent arrangement and17% maintained a shared care formula (at 35 : 65% ratios or higher). At both time periods


of 1 year and 4 years postmediation, substantively shared care was the least stable of thecontact patterns.

Of interest in this sample is the state of flux in arrangements, the nature of the familieswho went on from highly complex parenting disputes to share the overnight care of theirchildren, and the developmental pathways of their children.

SHARED PARENTING, CONFLICT, AND SATISFACTION

Some of the logic that underlies commentaries on shared parenting implicitly links thesharing of children’s care to the promotion of cooperative and enduring co-parentalinvolvement, and with that, the enhanced well-being of children and satisfaction of parents.In layman’s terms, the logic is this: “shared arrangements will require parents to get theiract together and keep it that way, and that’s good for everyone.” This line of reasoning holdswell enough when applied to the general population of parents who manage conflictadequately and do not require decisions about parenting to be assisted or made on theirbehalf. This logic falters with complex, conflicted families.

Allowing for the concurrent reparative effects of time, does shared care in fact foster adecline in conflict between parents? In the 4-year follow-up sample of mediation families(n = 123 families), there was a trend for fathers who described stronger parenting alliancesat intake to negotiate and maintain shared arrangements over the 4 years after mediation.10

Despite beginning with slightly higher regard for the other parent, and controlling for initiallevels of conflict, fathers in continuously shared arrangements, compared to fathers ineither never shared or changing patterns, reported consistently higher frequencies of minorand major conflict with their former spouses.11 Yet fathers in continuously shared careexpressed higher satisfaction with the living arrangements four years post mediation thandid fathers with changing arrangements or ratios of less than 36:65.12 Mothers’ satisfactionwith the arrangements was not associated with the care ratio at the 4-year mark.

Longitudinal data from children who participated in the fourth wave study (n = 145)provide a developmental perspective. The average age of the children at this time in thestudy was 12.59 years (SD = 3.35). Four years after their parents’ mediation, the childrenwere asked if they were content with their current living arrangements. Twenty-sevenpercent of children (n = 26/89) in a primary parent arrangement wanted to change theirliving arrangement in some way, compared to 44% (25/57) of children in sharedor equal care.13 One third (33%) of children in shared care wanted to see more of theirmothers, and 10% wanted to see more of their fathers. Eighteen percent of children inprimary parent arrangements wanted to see more of their fathers, and 12% more of theirmothers. Of the children who had continuously shared care over 4 years, 45% (n = 15/33)wished to change the arrangement, with all but one wanting to spend more time with theirmother.

Why the wish to change the arrangement? Parent conflict played a significant role.Controlling for initial levels of parent conflict, four years post mediation children in sharedcare arrangements, like their fathers, reported sustained levels of inter-parental conflict,while children in traditional arrangements reported significant decline.14 Children in sharedcare were also significantly more likely to report feeling caught in the middle of theirparents’ conflict.15 Children’s contentment with their living arrangements correlated mosthighly (and negatively) with their subjective distress levels about their parents’ conflict, andtheir feeling of being caught in the middle of it.16 Through the eyes of fathers and childrenthen, shared parenting arrangements in this sample of families was associated with


sustained conflict between parents. While fathers remained very satisfied with sharedparenting arrangements, children more often wished to change them.

INTERVENTION IMPACTS ON STABILITY OF PARENTING ARRANGEMENTS

Do different dispute resolution processes have differential effects on the nature anddurability of resulting parenting plans? This question was explored with data derived fromthe mediation study described above, with reference to the impacts of Child-Inclusive andChild-Focused mediation approaches on care arrangements over time.

Following feedback from their children, Child-Inclusive parents were significantly morelikely to negotiate less than 35:65% care ratios (primary parent arrangements) and tomaintain these arrangements for their children over the first year post mediation.17 Forty-sixpercent of children (n = 68/149) from the Child-Focused mediation group experiencedchange to the pattern of their care over the first year postmediation, comparedto 20% of children (n = 26/127) from the Child-Inclusive intervention. Table 1 belowhighlights four major patterns of overnight contact during the year immediately followingthe mediation intervention: care continuously under a 35:65% ratio; care at or above a35:65% ratio; shared care agreed to in mediation, but dropped by the end of the first year;and care that evolved over the year to become substantively shared.

Of interest in this table are the numbers of agreements made for equal or substantivelyshared parenting which reverted to primary parenting patterns by the end of the year,particularly in the Child-Focused treatment group. Qualitative findings (McIntosh & Long,2006) point to the differential impact for Child-Inclusive parents of receiving tailoredfeedback from their own children and developmental guidance from the child consultant atthe time of the mediation. The Child-Inclusive group were more likely to negotiate statusquo or small increases in shared time, where the Child-Focused parents, who negotiatedtheir arrangements in the absence of feedback from or about their children, were morelikely to agree to an immediate increase in father contact, which was frequently notsustained over the ensuing 12 months.

Over 4 years, ongoing significant differences remained in the patterns of care of theChild-Inclusive and the Child-Focused groups.18 Stability of the contact pattern was 1.5times more likely over the four year period for children whose parents had participated in

Table 1One year postmediation: overnight contact patterns of children by treatment group.

Child Focused Child Inclusive Total

Primary parenting plan mediated, and still in place 51 83 13434% 65% 49%

Shared parenting plan mediated, and still in place 30 18 4820% 14% 17%

Shared parenting plan mediated, but now primary 55 22 7737% 17% 28%

Primary parenting plan mediated, but now shared 13 4 179% 3% 6%

Total 149 127 276100% 100% 100%


the Child-Inclusive treatment, and these children were 1.6 times more likely to haveremained in care arrangements of less than 35 : 65%. Future analyses will need to explorethe merits of stable care arrangements for school aged children in contrast to two types ofchange: flexible and responsive changes that evolve over time in line with the changingneeds of the child, and reactive, litigious or disputed changes to care.

CONCLUSIONS . . . OR MORE QUESTIONS

As researchers were concerned a decade ago about children growing up without sub-stantive involvement of both parents, their questions now turn with the pendulum tochildren growing up in the “shared care era.” One of the roles of responsible research is tobring order and logic to reactive and ideologically driven climates by, as Kline-Pruett,Ebling, and Insabella (2004) describe, injecting data into the debate, and focusing sensiblyon “the balance of developmental opportunities and risks that shared parenting and dualhomes present” (p. 57).

Findings outlined in this paper are confined to a single longitudinal study of highconflict parents and as such are limited in the extent to which they can be generalized to alarger population. The data described however help to illustrate the complexities of bothentering and maintaining substantively shared arrangements from a conflicted base, andraise a number of questions at the practice and policy levels. The findings reinforceconcerns, previously expressed in the divorce literature, regarding false positive assump-tions about the durability of shared arrangements in high conflict climates, their power toimprove parental cooperation, and to diminish children’s perception of parental conflict. Adifferent order of concern involves the rates with which mediators in this sample facilitatedshared parenting agreements between deeply disputing parents, arguably in the absenceof relationship “equipment” (adequate trust and regard, ability to make joint decisions,flexibility, passive cooperation, effective containment of conflict) and/or the pragmaticresources (flexibility, desire to make the arrangement work) needed to sustain sharedparenting. Echoing Smyth (2009), in the shadow of the new legislation, it has to be askedwhether family law decision makers/facilitators are increasingly encouraging parents to“give shared care a try,” despite the odds of the arrangement failing.

Practice wisdom, as ever, is likely to come from the middle ground. Where cautionsexist, some parents will require guidance to better understand the issues. Some may needto slow down and engage in interventions that enable them to develop relational pre-requisites for sustained substantially shared care; others will need to be encouraged toadopt different arrangements, short or long term. Real advances to our understanding ofparenting plans and their consequences will only come through the nature of the questionsasked by researchers, practitioners and parents alike, particularly their ability to bring finerdistinctions to their inquiries than have typically been made to date around shared parent-ing. Legislation, such as that recently introduced in Australia, creates a pressing need tomove away from contextual, unilateral questions such as “at what age are children readyfor overnight arrangements,” and instead to formulate and test a nuanced set of questionsabout the triadic (mother, father, and child) relationship context from which the child’sdevelopmental capacities and sense of self grow. Key questions for the next generation ofresearchers and family law practitioners will include: For which children, of what ages andunder what parenting conditions do shared parenting arrangements pose a developmentalstrain? What are the influences of various shared care climates and patterns on each


parents’ emotional availability to their children? What are the consequences for children oflegislation that encourages parents to “give shared care a try”?

Researchers have documented the long-term benefits to children of ongoing parentalavailability throughout the divorce pathway. In tallying the “balance sheet” for children ofdivorce, future researchers will need to address questions about the potential of substan-tially shared parenting to assist, confound or derail a child’s developmental journey,considering carefully the relative contributions of legislated shared parenting pathways toeach equation.

NOTES

1. As summarised in McIntosh and Chisholm (2008).2. Family Law Act § 61D (Australia 1975). See Goode v. Goode, [2006] FamCa 1346; 36 Fam LR 422, FLC

93-286 (2006) for elaboration.3. Family Law Act § 65DAC(2) (Australia 1975).4. Family Law Act § 65DAC(3) (Australia 1975).5. See generally Family Law Act, Division 13A of Part VII.6. The court must consider whether equal time would be in the child’s best interests; and whether it would be

practicable; and, if it is, consider making an order for equal time: Family Law Act § 65DAA(1) (Australia 1975).If not, then the court must consider the same issues in relation to “substantial and significant” time. Family LawAct § 65DAA(2) (Australia 1975).

7. This study has been funded by the Australian Government Attorney General’s Department.8. N = 259 children, ages in 3 clusters, Pearson Chi-Square = 18.386,df = 6, p (2-sided) = .005.9. Pearson chi–square = 10.80, df = 6, p (2-sided) = .001.10. Parental alliance measure: Fathers’ report, n = 111, df = 2, F = 2.98, p = .055.11. fathers, n = 86, df = 2, F = 3.98, p = .022.12. Analysis of variance, sum of squares = 11.19, df = 2, F = 3.26, p = .043.13. Pearson chi-square = 3.89, df = 1, p (2-sided) = .049.14. Grych, Seid, & Fincham’s (1992) children’s perception of inter-parental conflict scale (9 items, truncated

from original scale) N = 104, df = 1, F = 5.293, p = .023.15. Caught in the middle scale (7 items) N = 99, df = 1, F = 4.213, p = .043. (Buchanan, Maccoby, &

Dornbusch, 1991).16. Children’s subjective distress n = 140, Pearson Correlation = -.278, p = .001; Caught in the middle

(n = 141, Pearson Correlation = -.305, p = .000).17. Pearson chi-square = 27.973, df = 3, p (2-sided) = .000.18. Pearson chi-square = 9.698, df = 2, p (2-sided) = .008.

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Jennifer McIntosh is a clinical and developmental psychologist, family therapist, and researcher based inMelbourne. She is the director of Family Transitions, a research and clinical practice devoted to the studyand treatment of family trauma and transition. She is also Adjunct Associate Professor at La TrobeUniversity (School of Public Health). Her interests as a researcher and educator in childhood trauma arisefrom an eclectic blend of experiences. Studies and work in Australia, the United Kingdom, and the UnitedStates have focussed on the experiences of children subject to family trauma and loss, particularlyexamining the effects of parental deprivation and conflict in early childhood. She is well regarded for heradvocacy on the rights of children to psychological safety, particularly in the face of family trauma andchange.


legislating for shared parenting: exploring some underlying assumptions

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