Is the shared residence always in the interest of the child?


Popular initiatives in favor of shared residence have multiplied in recent years, on the Internet and in the public space, carried by associations which pride themselves on relying on scientific arguments supposed to demonstrate that this mode of residence would be the miracle solution. against juvenile delinquency, school failure, child abuse and even the emancipation of women.

Remember that in the event of separation and divorce of the parents, two configurations are possible for the custody of the child. His main residence can be fixed with one of the parents (the other parent generally benefits from a right of visit and classic accommodation, extended or reduced). But, since 2002, it is also possible to choose to establish shared residence: the child will reside alternately, equally, in the home of each parent (usually one week out of two). In 2020, in France, 12% of children whose parents are separated live in alternating residence, i.e. 480,000 children. This rate is constantly increasing, especially until the child is 10 years old.

The arguments put forward by the associations in favor of shared residence are found in the bills that have been tabled, in particular the latest proposal to make shared residence the default mode of residence. According to this proposal, “85% of prisoners were brought up without one of their parents; 90% of the homeless have never known a parent and 63% of suicidal minors have lived a single-parent childhood”. It reads that “24% of children in single-parent families have repeated a year against 9% in shared residence (14% in united families) and that there are” 11 times more acts of violence among children brought up in the absence of one of the two parents.

However, it is not because 85% of prisoners were raised by a single parent (statistic whose source remains untraceable) that 85% of children growing up in a single-parent family will become delinquents. Moreover, the correlation between violence, juvenile delinquency and single parenthood is strongly contested in the scientific literature , especially since this family configuration is very often temporary. On the contrary, it is more relevant to indicate that, according to INSEE , the parents of children in shared residence are more qualified and are more often managers or intermediate professions. However, according to the Ministry of Higher Education, the children of executive parents are more likely (88% in 2020) to have a high school diploma and to undertake higher education studies.

In reality, the school success rate of children in shared residence would result more from the good level of education of the parents than from the type of residence. The idea that shared residence would promote academic success and would be more favorable to the child has therefore not been demonstrated.

The principal residence, a choice of the parties

The absence of alternating residence does not imply that the child does not maintain links with the other parent who, in the majority of cases, continues to benefit from a right of access and accommodation. In 2012, according to Infostat Justice , the share of children no longer seeing the other parent following a separation or divorce was only 4%. Remember that since March 4, 2002, the separation of parents has had no effect on the exercise of parental authority, which is joint in almost all cases (more than 90%) .

Article 373-2 of the Civil Code, introduced by Law No. 2002-305 of March 4, 2002, requires each holder of parental authority to respect the child’s ties with the other parent. This is now one of the criteria used by the family court judge to make decisions relating to the exercise of parental authority. Parental equality is not a simple law: it is an essential principle of French law.

The assertion that magistrates and magistrates systematically favor the main residence of the child with the mother is also unjustified. In reality, more than 80% of the decisions rendered by family court judges on the residence of the children result from an agreement between the parties who mainly wish to establish a principal residence with the mother.

There are few conflicting divorces and separations over children and, in fact, few fathers seek alternating or principal residence. Mothers are therefore not favored to the detriment of fathers. In the event of disagreement, the availability, the distance between the two homes, the age of the child, the reception capacity, the practice put in place by the parents before the judgment, the parent’s ability to respect the rights of the other parent, the existence of criminal proceedings for violence, are objective criteria on which the judge relies in order not to order shared residence.

The issue of children’s rights

Although the Parliamentary Assembly of the Council of Europe has issued a clear recommendation in favor of shared custody ( Resolution 2079, art. 5, al. 5 ), joint parental authority as of right, just like shared residence are absent from the International Convention on the Rights of the Child ( CIDE ).

Admittedly, according to paragraph 3 of Article 9 of this convention, the child benefits from the fundamental right to continue to maintain “personal relations and direct contacts” with each of his parents after their separation, unless this is contrary to his interest. This right is correlated with the duties of the father and the mother who “have a common responsibility for bringing up a child and ensuring its development” (CIDE, art. 18).

In no way does the CRC suggest that the child should have the right to spend equal time with each parent or even that parental authority should be shared. It is not established with certainty that joint parental authority would be in the interest of the child when his parents are divorced or separated. Studies show that joint parental authority after a divorce or separation can have negative effects on the child . Not only would imposing shared residence not end the parental conflict, it could increase the child’s emotional stress and lead to communication difficulties.

Remember that several European states such as Norway and Sweden , regularly cited as being models for the application of shared residence, still reject the principle of joint parental authority for unmarried couples. In Denmark , since 2012 shared residence is no longer ordered automatically after a divorce. In 2017, the Swiss Federal Council , which relied on the results of an interdisciplinary study conducted by the University of Geneva, did not wish to make shared residence “the priority care model”: indeed;

“alternate custody is not only demanding in terms of parental interaction, but also depends on certain material (increase in costs) and structural (labour market, extra-familial childcare facilities, family policy) conditions that t is not always easy to bring together. In addition, it can be very heavy for the child because of the frequent changes from one place of life to another. »

The best interests of the child must motivate the judge’s decision. But the notion of the child’s interest is above all “a principle of interpretation” , “a box where everyone puts what they want to find” , which in its very essence requires the greatest vigilance. Do we want to prioritize the interests of the parents or the interests of the children? The idea that it is in every child’s best interest to share their time equally with their father and mother may just be an adult projection. For, as the CRC rightly points out, the essential for the development of the child is to “grow up in the family environment, in a climate of happiness, love and understanding”.

Author Bio: Lynda Gaudemard is a Teacher-Researcher at Aix-Marseille University (AMU