(c) NZZ, May 15, 2011. By David Signer.
Women's organizations are resisting the idea of joint custody of children after a divorce becoming the norm. But a family law specialist believes this solution is fairer – and that women would only benefit from it.
NZZ am Sonntag:
Mr. Cantieni, for months there has been discussion about whether joint custody of children should be introduced as the standard in cases of divorce. Many fathers feel they are being discriminated against. As a lawyer and specialist in family law, how do you see this issue?
Linus Cantieni:
In practice, the dispute often isn't even about custody. If a mother opposes joint custody, it's simply not an option. Current law is discriminatory. In practice, divorces are actually more about money. However, men often feel they're getting the short end of the stick when it comes to finances. Especially if they don't earn as much and have lived according to traditional gender roles, they often have to pay their wives so much after the separation that they're left with only the bare minimum. Studies show, however, that in the long run, men are often financially better off than women: As the children get older, they have to pay less because they have to go back to work (more). Furthermore, they were able to focus on their careers in the meantime, while she was sidelined because of the children. So, it's usually the women who lose out.
But that means that women must have a vital interest in joint custody.
That's right. However, as a new study by the Swiss National Science Foundation shows, the social reality in Switzerland today is different: 86 percent of children of divorce are cared for by their mother, even though more than a third are subject to joint custody. Only a few families manage to share custody of their children after a divorce. In Scandinavia, shared custody is already much more common.
Are you in favor of making joint custody the norm?
Yes. But that alone won't change much in everyday childcare. Shared childcare can't be mandated by law. We need framework conditions that make it easier for men to invest time in childcare.
But the current discussion is about fathers being reduced to weekend dads after a divorce.
Exactly. If the mother opposes joint custody today, the father has no chance of obtaining it. The mother doesn't even have to give a reason for her refusal. With this rule, the courts often make things too easy for themselves in conflict situations. Fathers' rights organizations are right about this: it's unacceptable.
How do you explain this Swiss backwardness?
The key term is the child's welfare. If a mother refuses to cooperate with the father in the future, the courts often tend to conclude that, under such circumstances, continuing joint custody is not in the child's best interests; this is regardless of
whether the father was the child's primary caregiver during their time together. It is questionable whether this is always in the child's best interests.
Could you give a specific example from your experience as a lawyer?
Let's take an example from the younger generation, where a mother and father shared childcare during their marriage. She is a nurse, and he also works shifts; they were able to take turns caring for the child without external childcare. When they separated, the father had to move out. The mother consistently opposed a return to the previous shared custody arrangement. The judge ruled to maintain the current situation: The child stayed with the mother, and the father now sees the child two weekends a month and for three weeks during the school holidays each year. He is now a weekend dad.
Why is the woman so keen on sole custody in such a case? Wouldn't it be in her own interest for her ex-husband to continue caring for the child?.
Of course, it would be a relief for her, financially in the long run as well. If the woman—as in this case—is hurt because the man left her, she takes revenge by using the child as a weapon against him. The couple and parental roles become intertwined. It must be emphasized, however, that the reverse situation also exists, in which the woman wishes her ex-husband would spend more time with the child. He, however, is actually quite happy with his single life, at best takes the child to the zoo on Sundays, but otherwise has no desire to deal with homework or anything similar.
Are such contentious divorces as described above actually common?
No, thankfully not. In 9 out of 10 divorces, the parents reach an agreement on all aspects of the divorce, including child custody. Going to court is then often just a formality. Naturally, these cases don't make the news.
Can you describe such an example?
I'm currently counseling a couple where the father was also very involved in the child's care. Both parents are now in new relationships and have emotionally detached themselves enough to discuss child custody and visitation in a reasonable manner. They even own a company together, which they will continue to run jointly despite the divorce. The child is a bit older and can visit the father whenever they want. Because the parents can still communicate so well after the separation, they refrained from specifying visitation rights in detail in their divorce agreement. Thankfully, such divorced families do exist.
Court-defined visitation rules also seem very mechanical and detached from real life, don't they?
Absolutely. This is also because the needs of parents and children change over the years. A child needs less and less care, might suddenly want to see their father more often as they get older, or conversely, prefer to spend weekends with friends rather than their dad. Even when parents enter into new relationships, many things suddenly look different. Legal solutions always have a certain static quality, and this is especially true for visitation arrangements. In practice, this leads to the situation that in about three-quarters of cases, the parents, by mutual agreement, no longer adhere to the visitation arrangement that was negotiated years ago during the divorce.
Which direction is the trend heading?
We are seeing an increasing pluralization of lifestyles with very different forms of motherhood and fatherhood. Today's generation of men is becoming increasingly involved in childcare. However, the laws, and consequently legal practice, are still heavily influenced by traditional gender roles. In this respect, the laws are lagging behind societal developments and must better reflect this change.
