The Blog

'Best Interests': The Power Struggle for Children of Divorce

I often say that we seem to live our lives based on a magical book of what 'Should or Shouldn't Happen' and that to do so is ridiculous.

Article 3 of the UN Convention on the Rights of the Child requires member states to observe the 'best interests of the child as a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.'

Dr Edward Kruk, University of British Columbia - 'What Exactly is the Best Interest of the Child?' (

It's a phrase that any divorced parent has heard multiple times. In keeping with the many articles on 'how to support a child through divorce', Dr Kruk outlines the main areas which might serve the 'best interests of the child' and should be kept up by each parent. These include: order, protection, autonomy, equality, freedom of opinion, truth, honour, respect, responsibility, security, privacy, social life and roots. In short, a list of everything that any human being should expect as their right. Dr Kruk, and many others like him, do this because neither the UN Convention on the Rights of the Child nor family courts can define what the 'best interests' of the child are. Therefore, parents must be reminded or indeed educated. It's a worthy cause. But life is seldom so simple and the reality of the situation is much more difficult and grotesque.

At the heart of any divorced life are two people who once cared deeply for each other but for any number of reasons are now unable to live together in peace. The degree of amicability may range from friendship to literally trying to kill each other but the concept is always the same. Otherwise, they would still be together. In the majority of cases, these are two people who feel raw, hurt, disappointed and (for perhaps a limited time at least) want revenge. It may sound dark and it may sound horrible but it also sounds understandable. When the main divorce decisions are made, they are often made through bitterness and hatred.

When a child is introduced into that scenario, he or she often becomes a symbol of the relationship which must be 'won' or 'possessed'. If one parent believes that they were wronged by the other parent in the marriage then the child maybe all they have to hold dear to in life. The child then becomes even more - the only thing a parent grieving for the loss of their marriage has left - a lifeboat. Given that family law decrees that the parent with residency of the child is largely able to monitor and make decisions on contact with the other parent which includes the possibility of making life as difficult as possible for them, then the 'best interest' of the child can be at odds with the best interest of the resident parent. We have a dangerous combination of two people who want to hurt each other, both of whom know that their child is the source of most love and is therefore, the potential source of the most pain. Give one of them the power to dictate contact with the other and all the family court has to do is sit back, ask them to act in the 'best interest' of the child and watch them tear each other, and the child, apart.

With the majority of residency decisions automatically favouring the mother rather than the father (something I will write on in more depth in a later blog), it's the father who very often loses pretty much everything. Unless he can absolutely prove that the mother is unfit - i.e. she's got issues with alcohol, drugs or some criminal conviction - he's got no case. With residency of the child comes residency of the family home, a larger financial settlement and inherently more access to the child. As a result, the father moves out of the home he has often been the sole income to pay for, contributes regular financial Child Support, gives over at least 70% of the financial joint assets and loses daily contact with his child. In return, he gets a court case, a contact order governing holidays and alternate weekend access and tries to deal with the change in his life.

Of course it's not all one sided. The mother also has changes and difficulties to manage. But on the face of it, it's not hard to understand the rise in depression and suicide in divorced fathers or why there really is so much to fight for. Psychologically, the child has become a representation of power for one parent over the other. Even though contact and access has been legally decided, the resident parent has the power to govern that access on the front line and if they realise that, then life can become very difficult indeed.

Here's a real life case study. You are a divorced parent - mother or father - with one child resident with the other parent. Contact has been outlined by the court governing weekends and holidays and the child you used to put to bed every night is now only with you for 48 hours every two weeks. You miss them. At a specific time on a specific date - let's say 3 p.m. on a Saturday in July - you have arranged to pick up your child for two weeks holiday. The child you don't get much time with and miss terribly will finally be with you for a long period. Travel arrangements have been made, excited discussions between you and your child have taken place and swallowing your anxiety at knocking on the door of the house you once owned, you eagerly want to start the holiday off. Happy doesn't begin to cover what you are feeling. Your ex-partner answers the door and...refuses to allow your child to go with you.

How do you feel? That your whole world has suddenly blown apart? Your hopes have been crushed, your excitement destroyed. You can't see your child and you don't know how he or she is feeling about it. You're worried for them. You wonder if they are upset by the decision. What they think and feel about what's happening. What they have been told.

What do you do? You plead, get angry, beg. All of which has no effect.

What can you do? Well, you can't call the police because it's a civil matter not criminal so they're not interested. You could physically push your way in and take your child by force. Then the police will be interested because you are now guilty of breaking and entering, assault and possibly kidnapping. You can quote the legal contact order but you can't enforce it without going to court which will take time (and money which you may not have).

On that day, at that moment, standing outside that house - what can you do? Absolutely nothing. And that is where the problem with 'best interest' lies. There is no immediate effect once 'power' has been granted to the resident parent. And just for good measure, let's open it up to a wider audience. The holiday may be with grandparents, friends, your new partner, your other children. All of whom were looking forward to it and are now disturbed. They have less chance of doing anything than you do. So many lives dictated to by the actions of one person.

You go to court and the resident parent is warned not to do it again. After enough warnings, the court says that penalties or fines may be incurred and possibly removal of residency. But that's a long way off. And again, is little comfort on that disappointing Saturday afternoon.

If this sounds incredulous, then believe me, it happens.

And why? Because without proof that one parent is a complete no-hoper, the law trusts that each parent is acting in 'the best interest of the child' and therefore, puts no provisions in place if that doesn't happen. The key word in that sentence is 'trust.' While there is no definition of 'best interest', there is also nothing done to ensure how or if the parent is being reasonable. It is assumed and it is trusted. You are a parent, therefore you must be acting in the 'best interest' of the child. Well, there's a huge amount of evidence which shows how parents do not act for the welfare of their children. The NSPCC states that,

Most child abuse cases happen within the immediate family and abusers are usually the child's parents or carers.


And yet, trust is the order of the day. Banks don't give out loans based on trust. Criminal convictions are neither enforced or dismissed based on trust. The stability of our most important people - our children - is decided without any evidence at all. Social Services are overstretched and interested only where there is real evidence of criminal or abusive activity and quite possibly, not even then.

I often say that we seem to live our lives based on a magical book of what 'Should or Shouldn't Happen' and that to do so is ridiculous. For example, we should be able to walk safely home at any time of day in any place but we can't. We should be respected and have order, protection, autonomy, equality, freedom of opinion, truth, honour, respect, responsibility, security, privacy, a social life and be aware of our roots. But we're not. We need to throw that book away and deal with what IS rather than what SHOULD BE.

An adult feeling the pain of missing time with their child is hard, a child feeling abandoned by their non-resident parent because the resident parent has denied access is unforgivable.

As far as the legal system is concerned, that shouldn't happen because the resident parent is acting in the 'best interest of the child.' But it does and for a great many lone non-resident parents and their children the consequences are all too real.

And painful.

Popular in the Community