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Overview and Assessment of
Approaches to Access Enforcement
2001-FCY-8E
NATURE AND SCOPE OF UNWARRANTED ACCESS DENIAL AND OF NON-EXERCISE OF CHILD ACCESS
Literature Review
Nature and Scope of Unwarranted Access Denial
In most cases, the mother is the primary caregiver of the children during marriage and the custodial parent after divorce. Fathers typically do less child rearing during marriage and are the non-custodial parents after divorce.(1) Thus, most cases of access denial involve custodial mothers denying access to non-custodial fathers. The actual amount of access denial is unknown (Pearson & Thoennes, 2000: 124), but some evidence is available.
In Michigan, the Friend of the Court program deals with and enforces orders for custody, parenting time (access) and support. Statistics from the program provide information on the amount of enforcement activity relating to parenting time denial. In 1998, the Friend of the Court handled 839,049 cases. Make-up parenting time (compensatory access) was ordered in 598 cases (0.07 percent of the total caseload). There were 5,570 cases (0.7 percent of the total caseload) in which show cause activity was requested by a non-custodial parent to enforce a parenting time order, and 188,501 cases (22.5 percent of the total caseload) in which show cause activity was requested by a custodial parent to enforce a support order (Michigan, 2000a: Appendix C). These statistics are consistent with the findings of Cohen, who notes that the "overwhelming issue bringing parents back to court was child support enforcement"
rather than custody or access issues (Cohen, 1998: 48).
Hunt and her colleagues at Oxford University are currently conducting a study of the work of the court welfare officer, who prepares reports for courts in contested disputes about residence and contact (custody and access). This study provides some information on the extent to which contact denial is the problem in conflictual contact cases. The researchers note that their sample "is a very particular one,"
and others agree that most parents do not have a conflictual relationship (Maccoby & Mnookin, 1992: 274; Johnston & Roseby, 1997; Freeman, 1998). Hunt and her colleagues interviewed parents in 73 contested cases for which reports had been prepared six months after the end of proceedings. Of the 73 contested cases, 53 (73 percent) were contact disputes.(2) In 19 percent of the 53 cases involving contact disputes, the resident parent was denying all contact, and in 15 percent the resident parent was denying
contact because the children were opposed to it. Hunt comments that in the remaining cases it is likely that at least some of the custodial parents "were really opposed to contact per se but had learned that this didn’t go down well with the courts so were making it difficult in practice."
(3)
Richardson’s major study of divorce and family mediation, in which data was collected from 1,773 court files, 905 divorced or separated men and women, and 220 lawyers and mediators, found that in about 11 percent of the cases in which the mother had sole custody, the father did not, in fact, have access; however, in most cases this was not the result of access denial. The reasons given for the lack of access included "failure to pay maintenance (22 percent), the father has moved away (30 percent), he is not interested in maintaining contact with his children (55 percent) and the children do not want to see him (20 percent)"
(Richardson, 1988: 166).
In a random sample of five representative communities in Alberta, researchers separated those who identified themselves as being involved in a child access situation from the general sample, and compared the responses of the 30 custodial and 26 access parents. Most custodial parents (74 percent) reported that their experiences with access were relaxed, informal or somewhat difficult but manageable, compared to just under half (48 percent) of access parents. Close to half (45 percent) of access parents reported that their experiences were very difficult and strained, whereas only 19 percent of custodial parents did so (Perry et al., 1992: xiii).
In the Alberta study, custodial parents were more likely than non-custodial parents to report that child support was not paid on time and in full, and they reported discussing their children’s lives with the other parent more frequently than did non-custodial parents. While non-custodial parents reported missing visits because their children were too busy, the visit was inconvenient for the custodial parent or the visit was inconvenient for them, custodial parents gave a wider range of explanations for missed visits. Custodial parents said that the most frequent reason for missed visits was that it was inconvenient for the non-custodial parent, followed by that the children were sick or busy, that their children refused to go on a visit, that it was inconvenient for the custodial parent, or that the non-custodial parent had a drug or alcohol problem that interfered with visits (Perry et al., 1992: 71).
More than a third (38.5 percent) of custodial parents reported denying access at one time or another, and their reasons for denying access were that the children were busy or sick, that the other parent had a drug or alcohol problem that affected the visits, that it was inconvenient for them, or that the family was away on holiday. Some (9.1 percent) custodial parents expressed concerns about physical abuse by the non-custodial parent, and one reported concerns about sexual abuse. More than half (57.1 percent) of the non-custodial parents said they had been denied access at some time, and reported the following reasons: it was inconvenient for the custodial parent, the children were away on holiday, the children were busy or sick, and the custodial parent did not want the relationship to continue. A very large majority of the custodial parents wanted the non-custodial parent to maintain contact with the children (Perry et al., 1992).
Researchers in Australia also found that most custodial parents want the non-custodial parent to maintain access. A major three-year study is under way on the impact of the Family Law Reform Act 1995, which, inter alia, changed the custody and access laws of Australia to encourage ongoing involvement of both parents, and replaced the terms custody and access with residence and contact. The study included personal interviews with Family Court judges and judicial registrars, family law solicitors and barristers, Family Court counsellors and private and community-based counsellors and mediators. As well, the researchers assessed and compared 209 pre- and post-Reform Act interim and final judgments. The researchers released their interim report on this important study April 1999, and updated it seven months later in their submission to the Australian Senate Legal and Constitutional Legislation Committee (Rhoades et al., 1999).(4) The study found that most resident parents are supportive of contact between the children and the non-resident parent, that most women have not sought to deny contact to their former partners even where there is a history of domestic violence, and that women who had domestic violence concerns wanted some form of safety measure, such as supervision of the contact, rather than no contact.
Researchers in Denmark and England have also found that the large majority of custodial mothers want some contact even when there was a domestic violence issue (Hester & Radford, 1996).
In summary, most custodial parents support continued access by the non-custodial parent. Many custodial parents deny access occasionally for reasons such as illness of the child. Denial of access is much more prevalent in conflictual access cases than in the majority of access cases which are not conflictual. Within the court system, there are far more cases relating to failure to pay support than to access denial.
Nature and Scope of Non-exercise of Child Access
Researchers and clinicians have identified a tendency of fathers to fade out of their children’s lives. This phenomenon is a societal concern because economic support from the non-custodial parent is consistently associated with more positive outcomes for children. The maintenance of a relationship with the non-custodial parent is associated with better outcomes for many, though not all, children (Lamb et al., 1997: 397-398).
In many Anglo-American jurisdictions, there is evidence that a significant percentage of non-custodial fathers physically, emotionally and financially withdraw from their children, and that this withdrawal increases over time (Lamb et al., 1997: 393; Furstenburg et al., 1983: 656; Hetherington et al., 1976: 417; Seltzer & Bianchi, 1988: 663; Seltzer, 1991: 79). A clinical psychologist in Michigan noted that the "drop out rate for ‘visiting’ fathers in [the divorce] process is quite high, with the degree of father involvement declining dramatically as little as two years post-divorce"
(Davis, 1997: 22).
The precise scope of failure to exercise access is unknown, but some evidence is available. A Canadian study that looked at access in the context of divorce in the late 1980s found that more than 40 percent of parents granted access did not see their children at all or saw them no more than once at month. The involvement of non-custodial parents was found to be generally low, and there was a process of gradual disengagement from participation in active parenting over time (Canada, 1990b). More recently, the National Longitudinal Survey of Children and Youth found that 86 percent of children whose parents did not live together lived with their mother, 47 percent saw their father regularly (30 percent once a week, 16 percent every two weeks), 25 percent saw their father irregularly (once a month, on holidays or at random) and 15 percent never saw their father. Moreover, the regularity of visits decreased over time such that after five years 32 percent of children saw their father irregularly and 24 percent never at all. Children of never-married parents were twice as likely as children of married parents to never see their father (21 percent versus 11 percent) (Canada, 1999b: 21-26).(5)
An Alberta study found that more custodial parents (45 percent) than access parents (36.8 percent) would like there to be more access, and almost all (92 percent) of the custodial parents said they wanted the other parent to maintain contact with the children (Perry, 1992). Other studies have also found that custodial parents wish there were more access. Based on his empirical study of divorce mediation services in four Canadian cities, Richardson commented that "many custodial parents express concern about the effects on their children of fathers’ absence and the most commonly voiced complaint concerning access is that such rights are not exercised, or are exercised irregularly"
(Richardson, 1988: 36). As noted above, Richardson found that the non-custodial father did not see the children in about 11 percent of cases in which the mother had custody and that the reasons given included that the father had moved away (30 percent) or that he was not interested
in maintaining contact (55 percent) (Richardson, 1988: 166).
Wallerstein and Blakeslee reported that after 10 years few of the children in their study of affluent, high-conflict California families continued to have a close relationship with both parents. Even though a relatively high percentage of the fathers continued to visit regularly, very few maintained an emotionally rich relationship with their children (Wallerstein & Blakeslee, 1989).
In a large 1981 study, Furstenberg et al. found that 23 percent of the fathers had had no contact with their children during the previous five years and an additional 20 percent had not seen their children during the previous year. When a relationship between the non-custodial parent and children did exist, it was primarily social and access parents rarely participated in the discipline or training of their children (Furstenberg & Nord, 1985).
Patterns of disengagement vary among groups. In a study of 731 Colorado custodial parents, almost all of whom (94 percent) were custodial mothers, failure of the non-custodial parent to exercise access was highest among those with incomes below the poverty line and among never-married parents, although never-married African-Americans maintained more contact than did never-married Anglo- or Hispanic-Americans. Among married parents, however, African-Americans maintained less contact (Pearson et al., 1992). Class was also identified as a significant factor in a British study of 91 fathers. The study found that non-manual workers had the most post-separation contact with their children and unemployed fathers the least (Newcastle Report, 1995).
Furstenberg et al.’s large study cited above found that fathers tended to disengage from their children. However, the authors did not draw the conclusion that paternal contact benefits the child. Children who had not seen their fathers in five years often appeared to be doing better when measured against a range of behavioural and academic measures than did children who had seen their fathers frequently or more recently. The authors concluded that "on the basis of our study, we see no strong evidence that children will benefit from the judicial or legislative interventions that have been designed to promote paternal participation, apart from providing economic support"
(Furstenberg et al., 1987: 695). Similarly, Buchanan and her colleagues reported that the amount of access was not important to adolescents’ post-separation adjustment, and that "even adolescents who rarely or never saw their non-residential parents were, on average, adjusting as
well as adolescents who saw their non-residential parents on a regular basis"
(Buchanan et al., 1996: 262). Several researchers have found that the quantity of access is less important than the quality. In a review of studies of various custody arrangements, Johnston concluded that a "more substantial amount of access/visitation, in itself, was associated with neither better nor worse outcomes in these children"
(Johnston, 1995: 419). Lamb and his colleagues commented that in order to maintain positive relationships with their children, "parents need to have sufficiently extensive and regular interaction with them, but the amount of time involved is usually less important than the quality of the interaction that it fosters"
(Lamb et al., 1997: 400).
Many researchers have concluded that absence of conflict and a well-functioning custodial parent are more important factors than access visits in achieving positive post-separation outcomes (Furstenberg & Cherlin, 1991: 119).(6) In high conflict cases in which access exposes the child to parental conflict, access is often not in the best interests of the child (Lamb et al., 1997: 397-398; Bala, 1999: 193).
Richards, on the other hand, noting the downward social mobility of children of divorced parents and that non-custodial fathers have the potential to contribute not just child support but other material assistance and access to a broader kinship group that is also a source of material assistance, suggests that more attention be paid to the long-term implications for children. He says, "Doing all we can to maintain children’s parental relationships and kin network through divorce may be much more important than those concerned with the immediate aftermath of divorce have suggested"
(Richards, 1993: 314; see also MacLean & Wadsworth, 1988; Kitson & Morgan, 1990). Lamb and his colleagues commented as follows:
Most children in two-parent families form psychologically important and distinctive relationships with both of their parents, even though one may be a primary caretaker. Their relationships are not redundant because mothers and fathers each make unique contributions to their children’s development and individuality. The majority of children experiencing parental divorce express the desire to maintain relationships with both of their parents after separation. Therefore, in addition to enhancing the psychosocial and economic well-being of residential parents and supporting their relationships with offspring, post-divorce arrangements should also aim to promote the maintenance of relationships between non-residential parents and their children (Lamb et al., 1997: 400).
Reasons offered for fathers’ physical and emotional disengagement are various.(7) Ninety percent of the 40 disengaged fathers in Kruk’s study reported that discouragement or denial of access by the custodial mother was a reason for their disengagement. Additional reasons cited were that the fathers had decided to cease contact (33 percent), there were practical difficulties such as distance, finances or work schedule (28 percent), the children did not want contact (18 percent), a legal injunction prevented access (16 percent), and there was an early pattern of no contact (5 percent) (Kruk, 1993: 71).
Several studies show that a conflictual relationship between the father and mother and limited discussion regarding child rearing are associated with withdrawal by the non-custodial father (Ahrons, 1982: 55; Hetherington et al., 1976: 417; and Lund, 1987: 173). A number of studies documented negative feelings of fathers after divorce that may be linked to disengagement. Some access fathers reported feelings of loss, guilt, anxiety, depression, and loss of self-esteem (D’Andrea, 1983: 81; Grief, 1979: 311; Hetherington et al., 1976: 417; Friedman, 1980: 1177; Stewart et al., 1986: 55). Some expressed a feeling of being treated unfairly and hostility towards their ex-wives and their lawyers, and anger and frustration with the legal system (D’Andrea, 1983: 81; Grief, 1979: 311; Hetherington et al., 1976: 417; Friedman, 1980: 1177; Stewart et al., 1986: 55). Some were dissatisfied with the custodial arrangements and felt they lacked influence over their children
(D’Andrea, 1983: 81; Grief, 1979: 311; Luepnitz, 1982; Steinman, 1981: 403). Lamb and his colleagues commented that decline in contact seems "at least in part, attributable to difficulties in visitation arrangements that reduce or eliminate the opportunities for non-residential parents to be involved in broad areas of their children’s lives, making their relationships seem peripheral or artificial"
(Lamb et al., 1997: 397).
Judge Weisman suggested that non-custodial fathers withdraw from their children because they assume caretaking responsibilities in second families. In effect, they "trade"
one set of children for another, sometimes assuming responsibility for stepchildren and sometimes having more children with a new partner (Weisman, 1984: 268). Recent research partially supports Judge Weisman’s analysis. Cooksey and Craig report that "when men father additional biological children, we find that the biological children they fathered at an earlier time tend to be displaced."
These researchers found, in contrast, that additional stepchildren (as opposed to new biological children) do not displace the biological children of an earlier relationship (Cooksey & Craig, 1998: 198).
Many commentators have emphasized the importance of adopting language that will change conceptions of divorce and its effect on the parent-child relationship. Elkin has argued that there is a need to use words
that will reinforce that parents and families are forever and that a divorce merely ends the husband and wife role, but not the parenting responsibilities. We need words that will encourage parents to carry out their responsibilities to their children and to each other. We need words that will reaffirm the joint ongoing effort of parents, not just a part-time effort on the part of one and a full-time effort on the part of the other (Elkin, 1975: viii).
The language of encouragement Elkin advocated is supported by those who criticize the language of custody and access because it suggests that children are the property, or prisoners, of their parents (Ryan, 1989: I-6, I-11). These people also criticize the language of custody and access because it promotes the idea of winner-take-all, fails to connote the continuing parental responsibilities of both parents and is alienating to non-custodial parents. Pearson and Thoennes found that non-custodial parents had a sense of inequality about their parenting role because of the labels assigned to them, and that, because of this sense of inequality, many custody disputes focussed on power and the right to participate in the lives of the children (Pearson & Thoennes, 1984: 497). Patrician’s study of 90 non-custodial fathers found that the terms sole legal custody and non-custodial parent had negative connotations for the men and that the term non-custodial parent was viewed as weak, powerless, bad, useless and unimportant, while the term custodial parent was viewed as strong, powerful, winning, dominant, useful, important and valuable (Patrician, 1984: 41). The author concluded that the negative connotations of non-custodial parent might generate a feeling of unfairness, discourage parental co-operation, and increase conflicts with the custodial parent.
Several commentators, however, have suggested that changing the language of the law will not significantly change post-separation parenting patterns (Cossman & Myktiuk, 1998: 20-21). Researchers also say that a presumption of joint legal custody or continuing shared parenting will not have a significant impact: "joint legal custody is neither the solution to the problem of maintaining the involvement of divorced fathers, nor a catalyst for either increasing or softening conflict in divorcing families"
(Maccoby & Mnookin, 1992: 289; see also Furstenberg & Cherlin, 1991: 116-117).
The literature often focuses on the alienation of the non-custodial father (e.g. Fay, 1989: 407), perhaps because fathers typically do not have custody. However, the possibility that fathers are more likely to experience a feeling of alienation from their children because they are generally less involved in child care than mothers should also be considered. As well, researchers have looked mainly at post-divorce withdrawal, but there is some evidence that paternal disengagement begins well before separation. A 10-year study of personality and cognitive development of children in 110 families, 41 of which experienced divorce during the study, found that the fathers who eventually divorced withdrew from their children long before the crisis period and end of the marriage. The research also found that paternal disengagement and unreliable behaviour prior to divorce, particularly with regard to sons, coincided with the mother wishing that the father would become more involved in parenting (Block et al., 1986). If disengagement does develop before separation, explanations relating to post-separation variables may be regarded as partial. Efforts to address the disengagement of fathers, however, have focussed on post-separation variables such as custody and access language. The idea that paternal disengagement begins before separation and may continue regardless of what happens has been given little attention.
There are few studies of non-custodial mothers, but those that do exist suggest that non-custodial mothers are less likely to disappear from their children’s lives than are non-custodial fathers. In Grief’s study, 15 percent of custodial mothers reported that access fathers never saw the children, compared with 9 percent of custodial fathers who reported that access mothers never saw the children (Grief, 1985: 139). Maccoby and Mnookin reported that while children tended to see their non-custodial fathers less as time went on, they tended to see their non-custodial mothers more (Maccoby & Mnookin, 1992: 197). In their report on adolescents, Buchanan et al. reported that only 4.1 percent of father-resident adolescents had not seen their non-custodial mother for at least a year, while 7.5 percent of mother-resident adolescents had not seen their father (Buchanan et al., 1996: 162). In Canada, the National Longitudinal Survey of Children and Youth found that about 46 percent of children who lived with their mothers saw their fathers irregularly or not at all at the time of separation, while about 40 percent of children who lived with their fathers saw their mothers irregularly or not at all (Canada, 1999b: 23). There is also some evidence that non-custodial mothers are more likely than non-custodial fathers to maintain contact with their children even if they have defaulted on their child support payments (Pearson et al., 1992: 332). However, other researchers present a different picture. Richardson’s 1988 study found that children in the custody of their mother saw their father rarely or never in 12.8 percent of cases, while children in the custody of their father (less than 10 percent of the total) saw their mother rarely or never in 26.2 percent of cases (Richardson, 1988: 167).
The reasons for non-custodial mothers becoming estranged from their children may be somewhat different from those for non-custodial fathers. For example, some research shows that custodial fathers may be more likely than custodial mothers to give negative information to the children about the other parent (DeFrain & Eirick, 1981; Fischer & Cardea, 1982: 3).
In summary, some non-custodial parents fail to exercise access or fail to maintain a positive relationship with their children. The disengagement of non-custodial parents seems to increase in the years following separation. The reasons for disengagement are varied. Most custodial parents would like more contact between their children and the non-custodial parent.
