Western legal systems have put tremendous effort into getting it right for children in families where parents are separated. Concerns are only sometimes mutually compatible: parents have rights to their children, but it is best for children if they continue to see people who have acted like parents. Acting like a parent can encompass play, tucking into bed, and feeding and does not have to be extensive to matter. So is contact after parenting to maintain already existing relationships? Or to develop them after parents part? Because it would be better for children? Or because parents ought to act responsibly? Some states have treated child support as a substitute for public support, so getting parents engaged with the kids looks fiscally responsible too. Legal systems have images of good family relations that may not be within reach, and legal institutions may be clunky at the difficult enterprise of crafting a good family. As May and Smart argue in this collection, it is “a kind of modern folly” to think courts can settle complex relationships, yet they persist in trying (p. 79). Dewar names the heterogeneity of what we want out of family law as leading to its “normal chaos” (Reference DewarDewar 1998).
This collection from the Onati Institute brings together evaluations of separation and parenting from Germany, the United Kingdom, Spain, Australia, Poland, and France. Data include interviews and comparisons across local court systems. States have implemented mediation services, therapeutic intervention, parenting classes, and transfer centers to allow continued contact between parents and children. In Australia, court-ordered use of children's contact services allows the transfer of children without parents seeing each other (Sheehan, Dewar, and Carson; Rhoades; Fehlberg and Hunter).
Legislation and judicial practice across jurisdictions often assume gender equality as a way of preserving attachments for children, and sometimes as a response to rights claims by fathers' groups. In Australia, as Rhoades explains in this volume, legislation has erased any distinction between contact and parenting. As several essays explain, the assumption in legislation may be imposing a structure of contact that departs from parenting before separation. It also may have little to do with parents' work schedules or their understanding of responsibility. In addition, although legislation and court practices focus on continuing relations to benefit children, some parents still see a moral economy: fathers who do not pay support should not get to see their children (May and Smart; on all these points, see also Cardia-Voneche and Bastard; Trinder).
European states have rapidly been moving to allow same-sex coparenting, whether on a rights basis or a welfare-of-children and fiscal-responsibility basis. However, the objection that children psychically need a parent of either sex was recognized in the European Court of Human Rights when it refused to recognize a right to adopt for gays and lesbians. Fuszara and Kurczewski explain lesbian mothering and decisionmaking about how to become a parent. Although in the United Kingdom and the United States lesbians see access to sperm banks and anonymous donors as crucial to clear parental rights, in Poland a mistrust of sperm banks and a belief that every child needs a mother and father leads some lesbians to choose known sperm donors. As these two authors note with regard to Poland, an investment in children not biologically and legally one's own can seem an uncertain prospect for the partners of lesbian biological mothers. Kin take on parenting even when states may not recognize them as having the rights and responsibilities of parenting. In states such as Poland where parents move abroad to work, some who act as parents at home are grandparents and other kin. Fuszara and Kurczewski call the responsibility of extended kin networks the “deparenting” of parenthood. Western legal systems are in the awkward position of trying to recognize and regulate heterogeneity in family forms and ongoing conflict over issues that truly matter to parents, such as the care provided for children, finances, jealousy, and problems with new partners. Parents often make arrangements that suit the family as they see it. It is in the high-conflict settings where people need help most that legal officials get involved, yet it is in those families that it may be most difficult to help. Western legal systems' belief that we ought to be able to get it right makes it impossible not to intervene.
This collection of articles provides a useful overview of presumptions about family within and across legal systems, data concerning people's experiences with legal systems, and reflections on the multiple challenges in governing families.
