An examination of some relationships between the New Zealand jurisprudence of shared, equal parental rights and responsibilities & the gendered hierarchy of care 1994-2002

Abstract

This thesis examines relationships between contemporary jurisprudence and gendered patterns of parenting behaviour. Distinguishing between parental rights and parental responsibilities, it identifies a hierarchy of care as the basis for successful parenting when parents separate, and explores the difficulties of imposing this upon parents for whom “shared” parenting has different meanings. It asks whether a child benefits more if the Court supports and protects the primary carer in the exercise of her parental responsibilities or enforces the rights of an auxiliary parent.

At present the New Zealand Family Court bases its decisions on the principles that the welfare of the child is paramount, parents share responsibility and gender is not an issue. When either parent or both will not accept their role in a hierarchy of care, these principles may allow the Court both to depend on and leave unacknowledged the existence of the hierarchy and to make two assumptions.

The first is that mothers who have been primary caregivers before separation will and should remain responsible for primary care regardless of the conditions under which they are required to do so. The Court can therefore include fathers in the parenting process on terms that may privilege and institutionalise their rights while institutionalising women’s parental responsibilities, thus reinforcing economic and social gender inequities. This may also result in disadvantages for children, including the effects of ongoing interparental conflict.

The Court may also assume that it is more important to support a father’s right to an ongoing, direct relationship with his child than to end conflict by protecting and supporting the child’s relationship with the primary carer. In prioritising a relationship with a second parent the law may overestimate its value, prolong conflict and understate the effects of this on children. The court may also misunderstand and misrepresent the motivations of mothers.

The thesis concludes that it is better to support and protect a child’s primary parental relationship than to enforce the rights of an auxiliary parent, arguing that rejecting the questioned assumptions is congruent with intentions expressed in the Preamble of the United Nations Convention on the Rights of the Child.

The methodology used is to explore the general context within which Family Court decisions are made, emphasising the assumptions made and values prioritised when parents cannot agree about the allocation of their responsibilities and the Court assesses how to best provide for the welfare of the child. The context includes research about gendered parenting patterns and the benefits of a relationship with a second parent (from New Zealand, United States and United Kingdom) local legislation, international instruments, and Family Court philosophy expressed outside the court. Some significant decisions about the allocation of parental responsibility are then analysed within this context. Finally suggestions are made for reform, with an exploration into how the proposed changes might affect the outcomes of the cases analysed.