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Father fails to be granted custody of his child after death of mother

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  • #122
    Jawgap
    Closed Accounts Posts: 20,296 ✭✭✭✭Jawgap


    walshb wrote: »
    It does not show that at all. It shows that the best interests of the child should be paramount. Without knowing all the details, which I am sure the judge knows, I think the decision should be respected. Biology is only one factor.

    Sorry, but you're wrong if you think the best interests of the child were actually given due consideration here. That may have been the intention, but the reality on the ground is that the system is not geared up to achieve that objective.

    The system is dysfunctional and for that reason, the decision should be questioned.

    But don't take my word for it.....

    Have a look at recent research in the area....

    Judicial Separation and Divorce in the Circuit Court

    The stark reality is the system is broken and fathers get the rawest of raw deals.....
    • In no case were the views of any child heard directly by a judge, the views of the child were expressed through the primary carer or through court ordered expert reports where there were allegations of abuse.
    • On several occasions counsel asked the court if a child could speak with a judge, in all instances this request was refused.
    • In no case observed did a judge ask to meet with a child in any matter that affected them, despite such rights being stated in the U.N. Convention on the Rights of the Child, 1989.
    • A finding of this research is that no mechanism currently exists for the views of a child to be heard by the court, where that child wishes for their views to be considered.
    • Eighteen Section 47 reports were reviewed in court, and four were ordered by the court.
    • It was clear that there were no guidelines available to the court or the practitioners, as to what a S 47 should entail or indeed the required qualifications of the ‘expert’ who would carry out such an investigation.
    • There was no consistency in the format or content of these reports, and only one judge took the view that s 47 reports should always be questioned and the opinions of the expert rigorously examined.
    • Six of the judges, in court, indicated that they did not have time, or they did not see the necessity, to read the full report

    But I'm sure the case in question was handled much better than the sample examined by the researcher.........given it was handled by a judge with no background in family law practice........5 (out of 6 interviewed) of whose colleagues said their training in family law practice was deficient.....working in a system that doesn't provide such training to judges.....and where nearly 40% of judges were found to be 'openly hostile' to lay litigants.......

    ......so yes, I'm sure the judge made a good decision, carefully and appropriately balancing the interests of the child.......

    BTW there's also this gem in the research.....
    In 95% of the cases observed the primary carer was the mother, and in 100% of cases where access was unilaterally withdrawn, it was done by the mother.

    In no case was the primary carer sanctioned for persistent unilateral cessation of access in breach of court orders.

    It would be interesting to compare that figure to the treatment of fathers who breach court orders.......


  • #123
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Jawgap wrote: »
    Sorry, but you're wrong if you think the best interests of the child were actually given due consideration here. That may have been the intention, but the reality on the ground is that the system is not geared up to achieve that objective.

    The system is dysfunctional and for that reason, the decision should be questioned.

    But don't take my word for it.....

    Have a look at recent research in the area....

    Judicial Separation and Divorce in the Circuit Court

    The stark reality is the system is broken and fathers get the rawest of raw deals.....





    But I'm sure the case in question was handled much better than the sample examined by the researcher.........given it was handled by a judge with no background in family law practice........5 (out of 6 interviewed) of whose colleagues said their training in family law practice was deficient.....working in a system that doesn't provide such training to judges.....and where nearly 40% of judges were found to be 'openly hostile' to lay litigants.......

    ......so yes, I'm sure the judge made a good decision, carefully and appropriately balancing the interests of the child.......

    BTW there's also this gem in the research.....



    It would be interesting to compare that figure to the treatment of fathers who breach court orders.......

    As a lawyer (who does no family law) I believe that the adversarial court system we have in ireland is the last place that family law problems should be sorted out.


  • #124
    Jawgap
    Closed Accounts Posts: 20,296 ✭✭✭✭Jawgap


    Pro Hoc Vice wrote: »
    As a lawyer (who does no family law) I believe that the adversarial court system we have in ireland is the last place that family law problems should be sorted out.


    I wholeheartedly agree - but the problem is that even if you go to mediation and get an agreement it's not binding.

    And until something better is sorted out then current system is all there is - this places fathers in a bit of bind. Do you forego the only mechanism available to prevent you from being shut out of your children's lives or do you engage with it and risk being cast in the worst light possible?

    A good starting point, and something they could do tomorrow, is start training judges in family law and the finer points around dealing with kids.

    Next week, they could start by only appointing to the bench in the family court, practitioners who have actual experience of family law practice.

    In the mean time can we do away with the fiction that system is fit for purpose and serves the best interests of the child?


  • #125
    Ave Sodalis
    Registered Users, Registered Users 2 Posts: 7,555 ✭✭✭Ave Sodalis


    Jawgap, have you, for any minute, sat down and logically thought about the child through any of this? Or is it all "the poor father and the justice system is crap" etc? Have you considered the strong possibility, given the information in the article, that maybe the father wasn't the best for the child at this time?


  • #126
    Jawgap
    Closed Accounts Posts: 20,296 ✭✭✭✭Jawgap


    sup_dude wrote: »
    Jawgap, have you, for any minute, sat down and logically thought about the child through any of this? Or is it all "the poor father and the justice system is crap" etc? Have you considered the strong possibility, given the information in the article, that maybe the father wasn't the best for the child at this time?

    yes I have.

    And if it's one thing I've learned over the years is that the quite often the best people to judge what's in the best interest of a child are not the parents but the grandparents.....and the fact that the Nana.....
    ...... also had issues with her daughter’s partner because she believed he had entered a subsequent relationship prematurely after the death of her daughter.

    ......is a huge red flag, which the judge seems to have ignored or at least not given due weight to.

    Btw - it's not just me saying the system is dysfunctional. I linked to some pretty robust research that demonstrates the reality of how the system works - if it's not 'crap', I'm sure there must be some equally valid research (conducted by the Courts Service?) to show it's not crap?

    Perhaps it's a stretch to say the system is actively biased against fathers, but the presumptions stacked against fathers as parents far, far outweigh those stacked against mothers.

    Incidentally, Murial Walls, Chair of the Legal Aid Board, has described the Family Law system we have in this country as 'dysfunctional;' 'chaotic;' 'unremittingly, crushingly awful;' 'a form of torture' and lacking any 'coherence / consistency.' Perhaps she might be accepted as someone who would have a valid view on such matters?


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  • #127
    K-9
    Registered Users, Registered Users 2 Posts: 43,313 ✭✭✭✭K-9


    It is one of those things in cases like these that a father is at a disadvantage because the child doesn't reside with him full time so it becomes a vicious circle. Courts take so long to deal with cases, the temporary arrangements after a break up end up being permanent, with fathers 9 times out of 10 losing out. Until courts start looking at joint custody and access as the norm, nothing is going to change. The system is inherently biased against Fathers.

    Mad Men's Don Draper : What you call love was invented by guys like me, to sell nylons.



  • #128
    K-9
    Registered Users, Registered Users 2 Posts: 43,313 ✭✭✭✭K-9


    Boskowski wrote: »
    No, unless you have all the facts, it's not.

    The child may have been all their life with the non bio father while the bio father could be a raving lunatic.

    Courts usually don't give 10 overnight stays to raving lunatics! So it isn't an issue here.

    Mad Men's Don Draper : What you call love was invented by guys like me, to sell nylons.



  • #129
    the_syco
    Registered Users, Registered Users 2 Posts: 37,316 ✭✭✭✭the_syco


    The natural father had regular access to the child prior to the mother’s death, though he did not pay maintenance and maintenance was not sought.
    I wonder if the father has shown he has the financial resources to raise a child?
    Judge Murphy highlighted a psychiatrist’s report, prepared following the mother’s death, which recommended the child remain where he was. A move to his natural father’s home would create further significant loss, the report said, and could reduce the child’s resilience when older.

    A more recent psychiatrist’s report ordered by the court made the same recommendation. It described the child as bright and sociable and its author also said she believed the child wished to remain with the mother’s partner.
    I'd say the psychiatrist’s report carried most weight, and/or the judge used the psychiatrist’s report as a reason to close the case swiftly.


  • #130
    the_syco
    Registered Users, Registered Users 2 Posts: 37,316 ✭✭✭✭the_syco


    Jawgap wrote: »
    ...... also had issues with her daughter’s partner because she believed he had entered a subsequent relationship prematurely after the death of her daughter.
    ......is a huge red flag, which the judge seems to have ignored or at least not given due weight to.
    How premature is premature? It could be 8 months, it could 8 days. Without knowing this, we don't know how short the premature time which the grandmother refers to is.


  • #131
    Jawgap
    Closed Accounts Posts: 20,296 ✭✭✭✭Jawgap


    the_syco wrote: »
    How premature is premature? It could be 8 months, it could 8 days. Without knowing this, we don't know how short the premature time which the grandmother refers to is.

    Seriously?

    You're second guessing the grandmother......


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  • #132
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    Jawgap wrote: »
    yes I have.



    ......is a huge red flag, which the judge seems to have ignored or at least not given due weight to.

    I don't see how this is a huge red flag. If anything a "stable relationship" would probably benefit the man. The grandmother may have been a little upset that he moved on, but this upset may have little negative affects on the situation for the child.

    Nobody is second guessing the grandmother. From what I have read it appears to be the only issue that the grandmother has.


  • #133
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    Jawgap wrote: »
    Incidentally, Murial Walls, Chair of the Legal Aid Board, has described the Family Law system we have in this country as 'dysfunctional;' 'chaotic;' 'unremittingly, crushingly awful;' 'a form of torture' and lacking any 'coherence / consistency.' Perhaps she might be accepted as someone who would have a valid view on such matters?

    Does this mean that the law (family law) gets it wrong every time?


  • #134
    Jawgap
    Closed Accounts Posts: 20,296 ✭✭✭✭Jawgap


    walshb wrote: »
    I don't see how this is a huge red flag. If anything a "stable relationship" would probably benefit the man. The grandmother may have been a little upset that he moved on, but this upset may have little negative affects on the situation for the child.

    Nobody is second guessing the grandmother. From what I have read it appears to be the only issue that the grandmother has.

    Yes, it probably would benefit the guy, but the issue is whether it would benefit the child surely?

    Anyway, plenty of posters seem happy that the system (dysfunctional and flawed as it is) has made the correct decision. If it has, then it's likely to have done so by pure chance rather than good planning and conscientious application of informed legislation. Either way we'll probably never get to find out.

    If it all works out - brilliant.

    If it doesn't the mother's ex-partner can just walk away and leave the grandmother and father to look after the child. It's highly unlikely a court would force him to look after a kid he didn't want and didn't father, so there'd be no point in going back to court.


  • #135
    seamus
    Registered Users, Registered Users 2 Posts: 68,190 ✭✭✭✭seamus


    Jawgap wrote: »
    You're second guessing the grandmother......
    The grandmother "believed", that doesn't mean she's right.

    It's actually very common in the case where a spouse is terminally ill for the other spouse to lean heavily for support on a family friend (usually a friend of the deceased), and then later begin a relationship with that friend after the death of their partner.
    The process of caring for the dying person and later grieving often creates a strong bond between two people who would already be well acquainted anyway over the years.

    It's not inappropriate or wrong in the slightest, but the family of the deceased often have difficulty dealing with it and accuse the spouse of having an extramarital affair before the death.

    I don't actually see this as an attack on fathers' rights at all in Ireland. It's a weird case, but the positive to take out of this is that a male primary carer has been given majority custody of the child for whom they've been providing primary care.

    It is not long ago at all that this man would have had zero input in the process and the child immediately removed from him and handed to a female relative, never mind the child's natural father.

    It's also important that a court has recognised that biology does not make one a suitable parent and biology should not automatically override all guardianship/custody claims.


  • #136
    Jawgap
    Closed Accounts Posts: 20,296 ✭✭✭✭Jawgap


    walshb wrote: »
    Does this mean that the law (family law) gets it wrong every time?

    I'm sure if the Family Law system in Ireland was benefiting kids, parents and families then you wouldn't see a fairly senior person involved in the administration of law in this country use such language to describe it......at a seminar organised by the DoJ at which the Minister for Justice also quoted....
    The courts are buckling under the pressure of business. Long family law lists, delays, brief hearings, inadequate facilities and over-hasty settlements are too often the order of the day. At the same time, too many cases are coming before the courts which are unripe for hearing, or in which earlier non-legal intervention might have led to agreement and the avoidance of courtroom conflict.

    Judges dealing with family disputes do not always have the necessary experience or aptitude. There is no proper system of case management. Cases are heard behind closed doors, protecting the privacy of family members but offering little opportunity for external appreciation, criticism, or even realisation, of what is happening within the system. The courts lack adequate support services, in particular the independent diagnostic services so important in resolving child-related issues.

    The quote came from an LRC report published in 1996 and, as the Minister noted, nealry 20 years on things have not improved in any meaningful way.

    Nor, would you see research such as that conducted by Roisin O'Shea (linked to earlier) standing in stark isolation with nothing to counter it.....

    Nor would you see the system so unfavourably compared to best practice in other common law jurisdictions.

    The system, I'm sure, gets it right sometimes - but it's by luck. It's not inherently set up to succeed.

    ......and it's set to get - potentially - worse when the proposed Child and Family Relationships Bill gets through the Oireachtas.


  • #137
    Jawgap
    Closed Accounts Posts: 20,296 ✭✭✭✭Jawgap


    seamus wrote: »
    I don't actually see this as an attack on fathers' rights at all in Ireland. It's a weird case, but the positive to take out of this is that a male primary carer has been given majority custody of the child for whom they've been providing primary care.

    It is not long ago at all that this man would have had zero input in the process and the child immediately removed from him and handed to a female relative, never mind the child's natural father.

    It's also important that a court has recognised that biology does not make one a suitable parent and biology should not automatically override all guardianship/custody claims.

    That is both a progressive and an enlightened view - and definitely welcome......

    ......but based on the evidence and research conducted, do you think that position was arrived at incidentally, or by careful consideration of the facts, the law, etc by an insightful, socially aware judge looking to do the best by the child or a busy, untrained judge looking to dispose of a case and move down a crowded list?

    Would there be confidence that if the same circumstances (or broadly comparable circumstances) arose in, say, Cork next week with a different judge that the outcome would be the same, or if the father had access to better representation?

    I really hope the judge called it right and I'll happily admit to being wrong (assuming we could ever find out what happened), but perhaps the experience of the system leads me to a more jaundiced view of the matter.


  • #138
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    Anyone know the age of the child? It did mention that the child chose the step parent. Not that this is major, but it is something. All things equal, where both men have good character and upbringings and can prove that they can provide for the child, then the biological father should probably get preference, but that's assuming that he has already a proven and verifiable relationship with the child, and that this relationship is both in and out of the home where the biological father lives.


  • #139
    Pawwed Rig
    Registered Users, Registered Users 2 Posts: 22,442 ✭✭✭✭Pawwed Rig


    walshb wrote: »
    Anyone know the age of the child? It did mention that the child chose the step parent.
    It didn't actually say that. What is said was the psychiatrist 'believes' the child wants to stay with the step parent which I thought was a peculiar statement leading me to think that the child is fairly young.


  • #140
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    Pawwed Rig wrote: »
    It didn't actually say that. What is said was the psychiatrist 'believes' the child wants to stay with the step parent which I thought was a peculiar statement leading me to think that the child is fairly young.

    And would the child be asked outright where he/she wants to remain? The psychiatrist "believes" the child wants to stay with the step parent.

    Family Law in any jurisdiction far from a perfect system, and I am not surprised. There is host of complexities and emotions and obstacles to consider.


  • #141
    K-9
    Registered Users, Registered Users 2 Posts: 43,313 ✭✭✭✭K-9


    My problem with this is it seems very set in stone, 10 nights access, but moving towards equal access wasn't really considered.

    Mad Men's Don Draper : What you call love was invented by guys like me, to sell nylons.



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  • #142
    DamoKen
    Registered Users, Registered Users 2 Posts: 1,269 ✭✭✭DamoKen


    seamus wrote: »
    It is not long ago at all that this man would have had zero input in the process and the child immediately removed from him and handed to a female relative, never mind the child's natural father.

    We haven't progressed that much when you consider the stats in divorce/seperation cases in Ireland http://www.irishcentral.com/news/-99-percent-of-irish-men-lose-out-in-divorce-103426619-237717391.html
    irishcentral wrote:
    A new study has found that 99 percent of Irish husbands lose their homes during divorces

    In seven out of ten cases the judge ordered a transfer of the property into the wife’s name.

    During 160 contested cases when an order was made to sell the home the wife received more than half of the proceeds in 25 percent of the cases. During the other 75 percent the proceeds were split.

    The graduate student has observed 493 judicial separation and divorce cases in Dublin, Cork and the southeast since October 2008. She observed that 73 percent of judicial separation and 54 percent of divorce application were filed by the wives.

    The only progression made it seems is to accept the crumbs deemed sufficient by the family courts which are by nature and family law biased against the father. Argue against it and you are judged as "more interested in your rights than child", bit of a no win situation.
    seamus wrote: »
    It's also important that a court has recognised that biology does not make one a suitable parent and biology should not automatically override all guardianship/custody claims.

    Until more cases arise where there is a larger sample of surviving biological parents being the mother/father I don't think any conclusions can be drawn. However given the stats in divorce/separation cases I would be quite surprised if this applied with gender reversed.


  • #143
    jackofalltrades
    Registered Users, Registered Users 2 Posts: 3,269 ✭✭✭jackofalltrades


    seamus wrote: »
    I don't actually see this as an attack on fathers' rights at all in Ireland.
    The statistics show overwhelmingly that the mother is the primary carer of the child.
    The children will usually end up spending the vast majority of their time with the mother and by extension the mothers new partner, if she meets one.
    This means that if the mothers new partner wants, they have the ability to spend a lot more time bonding with the child than the father can.

    This would leave even the best fathers vulnerable to being "replaced".

    What is needed is genuine joint custody with 50/50 parenting plans, so that fathers can play as big of a role in the children's lives as their mothers.
    And in the event of the mothers passing away would be the best person to look after the children.
    It's also important that a court has recognised that biology does not make one a suitable parent and biology should not automatically override all guardianship/custody claims.
    The court ruling hasn't really said anything of substance against the father.
    It has said though that the father figure that spends most of the time with the child is at a distinct advantage in custody cases.


  • #144
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    jackofalltrades wrote: »

    The court ruling hasn't really said anything of substance against the father.
    It has said though that the father figure that spends most of the time with the child is at a distinct advantage in custody cases.

    And rightly so. Like it or not mothers for the most part rear children. It's just the way it is and always has been. It's the same with most animals. If parents split up the mother takes on most of the rearing responsibilities, and if the truth be known, it suits most fathers. They just aren't cut out to parent as effectively as mothers. It's a nature thing. Maternal instincts and all that. Not that fathers can't rear, just that they don't gravitate to it as easily and naturally as mothers.


  • #145
    jackofalltrades
    Registered Users, Registered Users 2 Posts: 3,269 ✭✭✭jackofalltrades


    walshb wrote: »
    And rightly so.
    Which sentence does this apply to?
    They just aren't cut out to parent as effectively as mothers. It's a nature thing. Maternal instincts and all that.
    Would love to see your source for this.


  • #146
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    jackofalltrades wrote: »
    Which sentence does this apply to?

    Would love to see your source for this.

    Source? There probably isn't a source. It's just a natural occurrence. Mothers do the majority of the rearing, and seem to bond that bit easier. Maybe it's due to them carrying the child, feeding with the child etc. Fathers parent, and bond, just a bit differently than mothers. Ok, they can parent as effectively. Just that they don't tend to be the dominant parent. Children always stay with the mother, unless she is incapable of looking after them. It's the way it is and always has been.

    http://www.cfr.nichd.nih.gov/report1.html

    "Mothers participate in childrearing activities at significantly higher rates than do fathers (or other infant caregivers), and mothers generally have more opportunities to acquire and practice skills that are central to infant caregiving than do fathers. On average, mothers spend between 65 and 80 percent more time than fathers do in direct one-to-one interaction with their babies. This is not to deny or minimize the considerable contributions to infant care made by fathers and other caregivers in and outside of the family."

    Practice makes "perfect" and all that.....I don't see how it would be odd to think that mothers are probably better suited and equipped to parent that little bit better than fathers, in general. They have had so much more practice and interaction with their young.


  • #147
    Seriously?
    Registered Users, Registered Users 2 Posts: 252 ✭✭Seriously?


    Perhaps those statistics are due to the fact that fathers are obliged by society to be out working to support the mother and offspring.


  • #148
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    jackofalltrades wrote: »
    Which sentence does this apply to?

    .

    The 'rightly so' comment I made was in agreement with the judgment that the father figure who spends most of the time with the child would be at a distinct advantage in custody cases.


  • #149
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    Seriously? wrote: »
    Perhaps those statistics are due to the fact that fathers are obliged by society to be out working to support the mother and offspring.

    Maybe, but that is how it has always been throughout the animal kingdom. It's not just human females who do most of the bonding and rearing. We are different. No matter how much we may strive for equality, some things cannot be changed. A woman who carries a child for 40 weeks and delivers the child will always have that extra connection and bond with the baby/child. I would argue that even fathers that aren't in employment (and living in the family home) would in general spend less time interacting with the children than the mother. The children themselves gravitate more to the mother. It's that bond that cannot be broken.


  • #150
    Jawgap
    Closed Accounts Posts: 20,296 ✭✭✭✭Jawgap


    walshb wrote: »
    Source? There probably isn't a source. It's just a natural occurrence. Mothers do the majority of the rearing, and seem to bond that bit easier. Maybe it's due to them carrying the child, feeding with the child etc. Fathers parent, and bond, just a bit differently than mothers. Ok, they can parent as effectively. Just that they don't tend to be the dominant parent. Children always stay with the mother, unless she is incapable of looking after them. It's the way it is and always has been.

    http://www.cfr.nichd.nih.gov/report1.html

    "Mothers participate in childrearing activities at significantly higher rates than do fathers (or other infant caregivers), and mothers generally have more opportunities to acquire and practice skills that are central to infant caregiving than do fathers. On average, mothers spend between 65 and 80 percent more time than fathers do in direct one-to-one interaction with their babies. This is not to deny or minimize the considerable contributions to infant care made by fathers and other caregivers in and outside of the family."

    Practice makes "perfect" and all that.....I don't see how it would be odd to think that mothers are probably better suited and equipped to parent that little bit better than fathers, in general. They have had so much more practice and interaction with their young.

    "Study into maternal behaviour observes maternal behaviour" shocker -

    That's a longitudinal observational study (and an old one by the looks if it) - not a comparative one.

    reading it, they set out to observe maternal behaviour (in Argentina, Belgium, Brazil, France, Israel, Italy, Japan, Kenya and the United States) not compare or discuss the respective roles of fathers and mothers. Or even discuss the value, role or significance (or otherwise) of the father as a parent.

    Surprisingly having set out to observe maternal behaviour, they manged to observe maternal behaviour.......


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  • #151
    walshb
    Registered Users, Registered Users 2 Posts: 58,333 ✭✭✭✭walshb


    Jawgap wrote: »
    "Study into maternal behaviour observes maternal behaviour" shocker -

    That's a longitudinal observational study (and an old one by the looks if it) - not a comparative one.

    reading it, they set out to observe maternal behaviour (in Argentina, Belgium, Brazil, France, Israel, Italy, Japan, Kenya and the United States) not compare or discuss the respective roles of fathers and mothers. Or even discuss the value, role or significance (or otherwise) of the father as a parent.

    Surprisingly having set out to observe maternal behaviour, they manged to observe maternal behaviour.......

    It's more to point out and indicate the clear differences between interaction with mother and child and father and child, and how that difference can help one parent over another, or make one parent that bit more at ease with parenting.

    I am not saying fathers cannot parent effectively. Just that in general it comes to mothers that bit more naturally and easily.


This discussion has been closed.
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