By embracing the idea of co-parenting, both parents would be placed on equal footing without creating a situation where one is considered the ‘primary’ carer and the other parent becoming the secondary parent, family law lawyer Dr Robert Thake explained.
Newsbook.com.mt interviewed Dr Thake on parental alienation, co-parenting and the role of the child advocate in the Maltese family court system.
Co-parenting following a divorce or separation is when the child’s parents seek to maintain equal or equivalent responsibility for the child’s upbringing. This means that a child has always and in any case the right to maintain a stable relationship with both parents, even if they are separated or divorced, unless there is a recognized need to separate the child from one or both parents, such as in the case of drug abuse or violence.
Asked on how co-parenting would take place in practice, Dr Thake remarked that there a variety of ways in which the parents of a child can be co-parents. He explained that under certain circumstances it might not be beneficial to split the week or to sleep one day at one parent while the next day, one sleeps at another parent. However, it could be done by having alternating weeks with the parent.
Dr Thake noted that it appears as though the Maltese system does not acknowledge the benefit of a co-parenting arrangement, where parents would have an equal amount of time with the child. He explained that the Maltese family court believes that a child needs stability and would therefore need a primary carer.
A ‘divisive’ term
By referring to one of the parents as a ‘primary’ carer one is creating division, Dr Thake observed. He remarked that the other parent does not want to be referred to as the “other” or “secondary” parent. This creates a lot of tension which can be felt in court in situations where you would have the parents competing against each in an attempt to prove who is the better parent. This is not beneficial to the child neither to the parents nor to the court.
“Proving who is a better parent is an absurd exercise which basically makes the case take as long as separation and custody cases are famous for doing,’ he noted.
Dr Thake maintained that if one were to presume that both parents are equally capable of taking care of their child, one could avoid a lot of time-wasting, litigation and a lot of stress on the children.
‘This is the atmosphere in which parental alienation is allowed to grow,’ Dr Thake noted.
Parental alienation is a concept which has been around as long as custody battles have been around, Dr Thake observed. It was only recently that we started hearing more about it due to the work of some non-governmental organisations and the media interest it generated.
Parental alienation is a phenomenon which occurs when a parent uses the proximity they have with the child to exclude the other parent. This leads to creating a distance between the child and the parent leading to disintegration of the relationship.
An alienating parent would perhaps blame the other parent for the relationship background or say something negative about the other.
The widespread phenomenon might not be recognized by name, Dr Thake replied, when asked if locally courts would recognize parental alienation.
He noted how this would usually happen at the very beginning of a separation where a parent would victimize themselves. Dr Thake remarked that sometimes parents do have malicious intent and a primary carer would use the time they have with the child to create a distance between the other parent and the child.
‘Had it not been for your parent we would still be going out as a family. You would be sleeping here. All of these things would mean everything to a child,’ he explained and coming from a parent, the child would believe it.
In Malta, a parent who is not considered as a primary carer would get six hours during the week with the child and a sleepover on the weekend. This would sometimes result in a situation where the other parent and the child cannot have a meaningful bond.
By recognizing that both parents are equal one would minimize the climate in which parental alienation is allowed to grow.
The Child Advocate
During the same interview, Dr Thake was asked about the role of the Child Advocate in the light of a recent court case in which he appeared for the plaintiff. The court pronounced itself on a number of points and it also had an impact on the law.
The case which was brought before the Civil Court (the family section) where a constitutional reference concerning an ongoing case before the Family Court was requested in a dispute relating to the care and custody and access to the children of the parties’ involved.
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Mr Justice Robert Mangion in his decision found that the plaintiff’s right to a fair hearing was breached. He also noted the anomalies and conflicts which arise in the Child’s Advocate role.
Dr Thake highlighted that the case was important for a number of reasons including the change in family law which it instigated. He noted how now the role of the Child Advocate is laid out in a legal notice.
The thinking behind the idea of having a Child Advocate was to have a lawyer who would represent the child in a case. The Child Advocate like any other lawyer would make submissions on behalf of the child. However, Child Advocates were being used as court experts and would draw up reports which would be subsequently sealed.
In this particular case, the sealed document which was not available to the father led to a situation where the parent lost access to his children for over a year and a half. He had no access to the document and could not challenge the court decision. In the landmark decision, the Court said when an interim decree is given the parties would get an explanation for that decision. It also said that if a document or report is submitted and this has a bearing on the Judge’s decision, then the parties should have access to it.
A change in approach is needed
Dr Thake highlighted that a change in approach is needed and that we need to embrace the idea of co-parenting. By treating both parents as equal, nobody would feel that they have been wronged or placed at a disadvantage.