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Fatherhood — Factors Contributing to Disengagement  of Non-custodial Fathers After Divorce

Divorce and Disengagement: Patterns of Fatherhood Within and Beyond Marriage.

Kruk, Edward, Ph.D. Halifax, Fernwood Publishing; 1993.


Psychological and Structural Factors Contributing to Disengagement of
Noncustodial Fathers After Divorce

(Kruk, E. (1992). "Psychological and Structural Factors Contributing to the Disengagement of Noncustodial Fathers After Divorce," Family and Conciliation Courts Review 29 (2), 81-101 (Association of Family and Conciliation Courts/ Sage Publications).)

Most disengaged fathers presented a complex amalgam of reasons for their loss of contact with their children after divorce, rather than one clear cause:

Reasons for Disengagement


Percentage that mentioned

Access difficulties 90 (36)
Father's decision to cease contact 33 (13)
Practical difficulties (distance,finances, work schedule) 28 (11)
Child(ren) not wanting contact 18 (7)
Legal injunction 16 (6)
Early pattern of no contact (prohibiting future contact) 5 (2)

Most frequently mentioned (by 36 of the 40 disengaged fathers) were difficulties related to access, whereas many of the contact fathers stressed the importance of the support and encouragement of their ex-wives in their maintenance of contact and development of a new parental role. Those fathers who received little or no confirmation of their roles as "fathers" by their former spouses appear most likely to become disengaged from their children's lives:

"That's the way my wife wants it - she doesn't want me around. And it's very difficult for me because I always feel guilty and wonder 'Did I try hard enough to get access?' I know I've tried every angle, and there's nothing I can really do now, other than what I've done. And the legal system has allowed, has encouraged, my wife to cut off contact between me and my son. They say I'm a swine if I don't pay support, but they say nothing about my not being allowed to see my son". (Canadian "disengaged" father)

"My wife's refusal to share the caring of our son, her perception of him as 'her' son and of herself as the only legitimate parent ... My wife actively breaking off my contact with my son, and her parents' influence in her breaking all ties with me ... My own inability to see my son on only a sporadic basis, which is nothing like my previous relationship with him or what I think to be fatherhood. Tied in with all of this is a tremendous sense of loss, of sadness, of total humiliation and discouragement". (British "disengaged" father)

"...The tension and conflict, the anger that permeated all my contact with my wife and children was impossible to bear. She was really, really angry. Her hands always shook, her voice always trembled--conflict was the central element in our relationship. Each contact involved a major fight, insulting screaming matches where we'd both say really vicious things to each other. It was one huge trauma for the girls. We'd argue and fight, I'd take my daughters, brood all afternoon, come back, and there'd be another big scene. My daughters would listen to this; they'd cry and scream. My wife threatened to call the police; I was in a blind fury. Finally I gave up--it was hopeless. My daughter was in the middle, she was unhappy, wetting the bed. You have the kid's welfare at heart, which my wife used as a convenient weapon against me. She saw me as causing all this damage, as the disruptive influence in my daughter's life. So the solution is to remove this disruptive influence. I was told to stay away; that I was harmful emotionally to my children. But never mind my daughter's constant pleas for her dad; never mind my wife telling my daughter that I had abandoned her. These are all subtle things that my wife wouldn't admit even to herself, but they're what determined the final outcome. After awhile I became afraid to make contact. My wife was perfectly content not to have me re-enter the children's life: that becomes a tremendous barrier--you become afraid of making contact. After awhile you rebuild your life, they rebuild theirs--it becomes easier to accept the status quo." (Canadian"disengaged" father)

Linked to ex-wives' lack of support of paternal contact and fathers' feelings of no longer being influential and valued as fathers, were fathers' own decisions to cease contact with their children. The 13 fathers citing this reason spoke of their overwhelming sense of loss and depression, the pain of seeing their children only intermittently, and the fact that an avuncular "visiting" relationship in no sense resembled "real fatherhood" and was perhaps harmful for children as well. Fathers' own decisions to cease contact were inextricably linked to their inability to adapt to the constraints of the "visiting" relationship:

"The most difficult thing is not seeing them and not actually being there to see them grow up. If you don't see them for three months or six months or whatever, you've missed six months of their life. You've missed the wee things like, 'Dad, the ice-cream van's here' or 'Dad, I've got homework to do' or this and that. And then you've got to say goodbye to them, and it's very frustrating. And you wonder - I still don't really know what's best - I wonder if maybe it would be better to leave them alone and let them live their life, and it's not knowing what to do, not knowing which is best for them. The feeling you get inside yourself everytime you go away: 'Am I doing the right thing by seeing them, would they be better off if I just didn't see them?'... It's basically just a hurtful relationship. There's a lot of men who really care about their kids, but walk away from them, because there's too much hurt on both sides. But a lot of people don't realize that. I used to be one of them, by the way, who thought really badly about a father who hadn't seen his kids in years. People seemingly label these fathers as uncaring people, but sometimes I wonder if in fact they're more caring, because of the hurt involved, and the separation - and each time you've got your child and your child has to go back - is really hard, is really difficult. And until you go through it, you can't understand it. And I think especially with younger kids, the quicker a parent doesn't see their kids then their kids aren't really realizing that their dad's not there. Maybe it's less hurtful because both the child and parent have to say goodbye to each other, and both of you are practically in tears. There's a sort of silence between you - it's like continual hurt. And men that don't actually go and see their kids again, I quite admire, because they're minimizing the pain on that child - because otherwise it's continual pain. But the pain never goes away for the father, no matter what he does". (British "disengaged" father)

"Mainly that I couldn't accept the role of simply being a visitor in my kids' lives. I'd been so involved with them, when I lived with them, as a father, that the gulf between simply being somebody who's a visitor, who took them out occasionally, and being a father, was just too wide for me to bridge. And I also felt that it would inevitably lead to resentment on their part about it. I didn't think that I could cope during the time that I did see them as a visitor...and that probably during the whole of that time I'd be screwed up emotionally to such an extent that that would convey itself to them, and lead to them not wanting to be with me." (Canadian "disengaged" father)

Eleven fathers mentioned practical difficulties in exercising access, including problems of distance, transportation, finances, work schedule, or lack of adequate accommodation, but only as a secondary factor in their loss of contact. Seven referred to a lack of confirmation of the non-custodial father role by their children, or their children increasingly distancing themselves from their father after divorce; 6 mentioned the bias of the legal system toward sole maternal custody and the existence of a legal injunction prohibiting the type of contact they had desired; and 2 fathers indicated that they had been unable to overcome a pattern of diminished or no contact established in the months immediately following divorce.

Clearly, a shortcoming of the present study is that only fathers' own stated reasons for disengagement were accessible; corroborative information from other members of the divorced family was not available, and uncritical reliance on self-report data can be problematic as fathers tended to largely underestimate their own role in their loss of contact with their children. Nevertheless, fathers' own interpretations of the disengagement process, not previously examined in the divorce literature, are what they face and act upon; for this reason, any analysis of paternal disengagement must begin with and seriously consider fathers' self-reports. There were many indications in the data, however, that paternal disengagement is a much more complex phenomenon than merely the result of obstruction of access by the former spouse.

Interdependence of structural and psychological factors. A closer scrutiny of the dynamics underlying the process of disengagement suggests that two orders of variables determine the level of post-divorce father-child contact: structural and psychological. The disengagement of non-custodial fathers after divorce is a result of a combination of structural constraints and fathers' own psychological response to the perceived loss of their children. On their own, each is usually insufficient to effect disengagement; combined, they are a potent force mitigating against post-divorce paternal contact. Both structural and psychological factors are inculpated as critical mediating variables between divorce and disengagement: while divorce represents a situation where fathers are judicially, culturally, and legislatively disadvantaged on the basis of gender, fathers' psychological adjustment to the consequences of divorce is the other critical factor in the disengagement equation.

Non-custodial fathers' disengagement from their children should not be interpreted as a lack of interest in their children, or the end result of what may have been a tenuous father-child relationship during the marriage. The grief of previously highly involved (and now-disengaged) fathers is the most pronounced and remains unresolved: chronic grief is most characteristic of this group, a reflection of their closer attachment to their children before divorce. Psychological factors related to fathers' unresolved grief and inability to adapt to child absence, role loss, and the constraints of the "visiting" relationship, are highly significant factors in their eventual disengagement. Fathers' lack of help-seeking behaviour further compounds the resolution of grief associated with the multiple losses attendant to divorce.

It also cannot be assumed that fathers' post-divorce roles are solely reflections of their choices. Highly involved and attached fathers during the marriage are highly vulnerable in relation to structural constraints and the effects of a judicial mode of custody and access determination, often being caught in a completely impossible dilemma: unable to tolerate the idea of the loss of their children, but given little expectation for success and what many consider to be a highly adversarial means to try to prevent the loss (which they believe will seriously harm their children), they gradually disengage from their children's lives. Such fathers, often unaware of alternatives in regard to both custody and access resolution and post-divorce custody arrangements at the time of divorce, rarely make legal application for custody, although they are the most likely to desire at least partial physical custody of their children. Structural factors, delineating and regulating the boundaries of the post-divorce father-child relationship, are thus also significant determinants of fathers' subsequent loss of contact with their children. Existing analyses of "divorce adjustment" have overlooked this dynamic interaction between the structural consequences of divorce for non-custodial fathers and individual fathers' psychological adaptation to these consequences. The concept of "divorce adjustment" prevalent in the divorce research suggests that it is individuals who are expected to come to terms with (or adjust to) the consequences of divorce; the social structure is not implicated as in need of fundamental change.

Structural Factors

Adversarial nature of legal processes. Although disengaged fathers themselves identified the antagonistic nature of the post-divorce relationship between the former spouses resulting in withheld access as the primary external barrier to their post-divorce contact with their children, it may be argued that legal processes are strongly implicated in exacerbating or creating such conflict. Fathers' overall assessment of their lawyers vis-a-vis helping or hindering their subsequent relationships with their children, and of the judicial system in regard to its appropriateness as a forum for determining child custody and access arrangements, differed between contact and disengaged fathers. Disengaged fathers in particular felt that the system of individual representation characteristic of the traditional adversarial approach of the legal system served to polarize the divorcing spouses. They attributed the provocative behaviour of lawyers and the adversarial nature of the legal system as often creating overt conflict where little such antagonism had previously existed. Direct communication between spouses was usually prohibited by the lawyers of either or both parties, and a more hostile tone introduced via letters and affidavits drafted by lawyers but ostensibly representing their clients' sentiments, which constituted a new medium of communication between the "pursuer" or "plaintiff" and "defendant".

"They brewed up bad feelings between my wife and myself--the letters that the lawyers have sent us--one trying to intimidate the other. My wife was boiling over a letter written by my lawyer which I knew nothing about, and I was really mad about a letter her lawyer sent me. It's been made into a war." (British "disengaged" father)

"...a woman goes to her lawyer and says, 'Look, I'm not getting along with this guy, I'm frustrated, I'm fed up," or whatever, and her lawyer then says, 'What a rotten swine,' and then they write up a great big affidavit that accuses the father of being the rottenest son-of-a-bitch on this earth. And that's presented to the father, and the father sees this, but it's not worded in the wife's words, it's worded by the lawyer, and they get madder than hell when they see all this nonsense. And then they go and see their lawyer and their lawyer reads this and then he writes up a whole bunch of crap back. So that's the big thump--that's what kills it, right then and there, then it's a big fight all the way in..." (Canadian "disengaged" father)

They essentially produced a negative tone in the relationship where none existed before. Essentially the adversarial principle produces hostility where there might have been compromise. It results in not being able to do things spontaneously which you would do in a normal relationship - it causes you not to telephone, it causes you not to write. If you do write it is through the lawyer to another lawyer - it makes contact very formal, including contact with children, which is not a natural way of relating. It restricts contact to a particular time, day, or time of year. There is no spontaneity left in the relationship. But the worst thing it does is divide you into two sides and there's no middle ground or common ground which is where we'd normally be. Essentially you have no communication with your wife about the children since everything is filtered through lawyers". (British "disengaged" father)

From the research evidence available, it is clear that most lawyers do approach divorce in a traditional adversarial manner (Eekelaar, 1984) and consider that in being partisan and assuming a "fighting" posture they are merely protecting their client's interests (Murch, 1980); the assumption that because two individuals are divorcing they are necessarily in conflict is prevalent (ibid.) However, a sizeable proportion of fathers in the present study did not report a situation of high conflict between the spouses at the time of the separation, before legal consultation, and a third of the fathers expressing a desire for at least partial physical custody of their children reported no overt disagreement between the spouses in that regard at that time. These fathers believed that the possibility of a shared custody arrangement clearly existed at the point of separation:

"... we originally had a joint custody agreement, and it was the legal system that tore this apart, it destroyed it. We had agreed beforehand and then this happened - the legal system intervened". (Canadian "disengaged" father)

"...Joint custody was a very real possibility in my mind at that time. It seems to me now that by listening to the lawyer and agreeing to grant sole custody to my wife, that it jeopardized my future relationship with my daughter. My lawyer kept stressing that the most important thing was to make the terms of the property settlement easier--and to do this I would have to agree to my wife having sole custody...Basically I sacrificed custody in the interests of a property settlement." (Canadian "disengaged" father)

Many disengaged fathers described feeling intimidated by the adversarial approach of the legal system, and were cognizant of the dangers of this type of approach in regard to their children's well-being, another significant factor in their decision not to legally contest the issue of custody. Fathers generally conceived of a custody "battle" in terms of a format of attack - defence in order to impress the judge, with detailed accounts of neglect, abuse, and cruelty presented by both sides in their attempt to "win" their children. Many saw contested custody as more likely to hurt their children (and former spouses) than facilitate the development of a meaningful post-divorce relationship with their children; indeed, their overriding concern was that their children would be used as "pawns" and "weapons" in the "battle", which would likely continue well after the custody hearing:

"The way the lawyers fight - tit for tat all the time. It's made into a battle; it's bargaining for a human life. It's made worse since the law leans toward the mother in the case of custody. The mother says 'The law is on my side', and I as the father am forced to fight, which I don't want to do ..." (British "disengaged" father)

"My wife and I had no opportunity to come face-to-face to discuss our situation--everything transpired between the lawyers. My wife decided to obtain sole custody through the court, and my lawyer felt that I needed to take a 'fighting' posture. My wife certainly used her lawyer this way, which led to a very acrimonious situation. My wife's lawyer prevented me from having contact with my children, so that after two or three months when I finally did see my children, they were visibly scared when they did see me, and were quite reluctant to go out with me. My wife's lawyer used this in court later on." (British "disengaged" father)

"I continued my efforts toward a reconciliation, mainly by trying to be patient, remaining where I was, patient, in total desolation. I couldn't act in any kind of positive way--I had to endure my suffering in the right way, with integrity. Any action that I could have taken--bringing Michael home with me against my wife's wishes, consulting a lawyer, fighting a custody battle in court--I considered all of these as violent means, which ethically I couldn't do. I thought only about preserving my integrity and enduring it all in the right way--although I admit I cut quite a ridiculous figure in the process." (British "disengaged" father)

Many disengaged fathers considered contested custody--and the use of legal process generally--as a highly adversarial means which did not justify the end they were seeking. Such fathers described being strongly and intimately attached to their children and were primarily concerned with the potential harmful effects of the adversarial process on their children. For these fathers, however, withdrawal from the adversarial process further jeopardized their ongoing contact with their children, as the level of hostility between the spouses had become such that negotiation had effectively become an impossibility.

Feelings of powerlessness and victimization were prevalent among disengaged fathers who, throughout the time of legal negotiation, attempted to maintain their pre-existing bond with their children by not utilizing what they perceived to be an adversarial process means to "win" custody. Their lawyers (or ex-wives' lawyers) nevertheless adopted adversarial means in the legal negotiations that took place. Engaged in an adversarial process, but not wanting to utilize such means to "win" custody, those fathers expressing a strong desire for a shared physical custody arrangement after divorce were viewed with suspicion and their desires and motives were questioned; they were assumed to not genuinely want the burden of full or shared custody but to have ulterior motives in positing such a "threat" or "bluff". In reality, their previous involvement with and attachment to their children made them unable to wage a public "fight", which they perceived would harm their children. Their refusal to adopt such means, however, contributed to their loss of contact with their children.

Disengaged fathers often saw their lawyers (and the legal "divorce industry") as having a vested interest in profiting financially from ongoing conflict, and hence less likely to be alert to the possibilities of reconciliation or reaching an amicable settlement by means of mediation. Fathers described lawyers' tactical manoeuvres toward exacerbating and perpetuating conflict between the former spouses as manipulative and designed to extract financial profit from the breakdown of their clients' family relationships. These fathers came to resent their escalating dependence on their lawyers and the legal system. However, they felt "locked into" the legal process insofar as they had lost trust in their ex-wives, feeling vulnerable in terms of their future relationship with their children and needing the special protection of a lawyer; this loss of trust between the spouses and feelings of vulnerability were seen by fathers to have been deliberately engineered by their lawyers and a legal framework actively promoting such a dependency. In this context, fathers spoke of the slowness and constant delays of the legal machinery and of high legal costs as largely unnecessary.

"...the law acts so slowly, and emotional matters should be resolved quickly if there's going to be a balanced outcome. For example, it took six weeks for the fact of non-access to be brought into the court and a further three weeks for it to be dealt with--a total of nine weeks of non-contact had elapsed. The law delays things a lot as well as polarizing parental opinions." (British "disengaged" father)

Finally, disengaged fathers stressed that the use of legal tactics appropriate to the "combat" of litigation, when applied insensitively to issues arising from emotional difficulties in family relationships, could be highly damaging. The judicial system was thus considered by all disengaged fathers to be an inappropriate forum for resolving issues of child custody and access.

""...the whole system is totally barbaric--it is not in the least interested in the children's welfare, as I found out in that court. It's just to get a decision made--they're there to make a decision, but unqualified to make the decision, and more often than not they make the wrong decision, because they do not know the family's circumstances, without liaising or consulting with any member of the family. It's the judge's decision, which I find farcical," (British "disengaged" father)

Identified by fathers themselves as primarily responsible for their loss of contact with their children, was that of obstructed access by the former spouse. Clearly, the less supportive that a custodial mother is toward paternal access, the greater the likelihood of access difficulties and eventual disengagement of the father. The source of maternal hostility to post-divorce father-child contact thus becomes an important question. Inter-spousal hostility after divorce is not necessarily primarily influenced by pre-divorce patterns; while mistrust and anger are almost universally present in varying degrees upon divorce, intensified conflict during and after divorce may be directly related to intervening legal processes. Fathers frequently held their lawyers and the legal system responsible for exacerbating or creating conflict between the spouses. Many fathers initially made attempts to discuss terms of custody and access directly with their wives, but were restrained by their lawyers (as were their wives) from communicating directly, and instructed to negotiate via the lawyers. Negotiations involving lawyers acting as intermediaries typically lasted at least several months, many several years, during which an atmosphere of competition, fear and mistrust prevailed over what was in some cases a spirit of co-operation (despite disagreements) at the time of divorce in regard to post-divorce arrangements for the children. The adversarial nature of legal processes, whether restricted to negotiations between the lawyers or involving court action, makes it highly unlikely that a spirit of friendship and co-operation will survive the divorce. Severe conflict is the end-result of a negotiating environment which effectively forces each party to assume an extreme position.

To test the influence of legal processes in exacerbating or creating post-divorce spousal conflict, the level of conflict between the spouses at the time of separation (before any major legal involvement) was compared with the post-divorce level of friendliness between the former spouses (after legal processes had made their major impact). No correlation was found between the level of inter-spousal conflict at the time of the divorce and the nature of ex-spouses' post-divorce contact; that is, the likelihood of friendly and unfriendly (or non-existent) post-divorce contact did not depend on the level of conflict between spouses at the time of divorce--suggesting the presence of mediating factors operating in the period during divorce which influence the nature of the subsequent relationship.

There was also no association between the level of conflict between the spouses at the time of divorce (separation) and subsequent father-child contact: conflict between the spouses upon separation did not necessarily lead to paternal disengagement. The relationship between paternal contact and the level of conflict between the parents after divorce, however, was highly significant (p < .001): post- but not pre-divorce parental conflict was associated with non-custodial fathers' disengagement from their children. This further suggests that mediating factors are at work during divorce to produce a level of parental conflict strong enough to result in access difficulties for non-custodial fathers, followed by eventual loss of contact.

Significantly, most disengaged fathers described their ex-wives as having believed in fathers' ability to be effective parents, as having confidence in and generally agreeing with fathers' child rearing practices during the marriage. Disagreements over child-related matters within the marriage were reported as relatively rare. The fact that the great majority of divorces involve two capable and loving parents could be used as the basis for developing positive co-parental relationships after divorce; in contrast, within the legal process, former spouses are oriented toward devaluing the relative contribution of the other, and custodial parents toward acting as if non-custodial parent contact is not important for the children. Distorted perceptions of the former spouse appear in fact to be a frequent result of a legal mode of custody and access resolution. Up to the time of legal negotiations, each parent has viewed the other as necessary to the children's lives; the adversarial stance adopted during legal negotiations contributes to a dramatic shift in this perception.

Child custody determination. Traditional access arrangements were considered to be entirely inadequate by those disengaged fathers who perceived themselves as highly involved with their children before divorce. At the time of the divorce, the great majority of these fathers wanted at least partial physical custody of their children; they described their actual legal custody and access arrangements as woefully insufficient--the main issue for these fathers was not one of legal custody and access per se; rather, they were primarily concerned with maintaining a meaningful post-divorce relationship with their children in the form of regular and frequent physical contact.

Among disengaged fathers, there existed a widespread yearning for the children with whom they were no longer in contact. All forty disengaged fathers indicated a desire for "a lot more" contact with their children:

Paternal Contact by Desired Level of Child Contact after Divorce2

Contact Disengaged Total
% (N) % (N) % (N)
A lot more 40 (16) 100 (40) 70 (56)
Some more 28 (11) 14 (11)
About right 30 (12) 15 (12)
A little less 2 (1) 1 (1)


100 (40) 100 (40) 100 (80)

p < .001

Existing divorce literature, while containing little empirical data in regard to fathers' desired level of contact with their children after divorce, often contains suggestions that fathers simply do not want custody of their children and explains fathers' disengagement primarily in terms of a lack of interest (Eekelaar & Clive, 1977). The findings of this study suggest otherwise: the great majority of non-custodial fathers considered traditional legal access arrangements to be insufficient, and wanted at least partial physical custody. This was most evident in the case of disengaged fathers; dissatisfaction with existing legal custody and access arrangements, as well as with actual physical arrangements, was highest among those non-custodial fathers who had previously enjoyed a relatively high level of involvement, attachment, and influence and had subsequently lost all contact with their children.

The discrepancy between fathers' desires in regard to custody and access and the actual post-divorce arrangements made is striking. Seventy-nine per cent of all of the non-custodial fathers and 88% of the disengaged fathers in the sample indicated that at the time of the divorce, their preferred arrangement was one in which their children could live with them at least part of the time, including overnight stays. Clearly, those fathers who legally disputed custody and forced a court decision (15 of 80 fathers) did not constitute all of those who wanted custody of their children; there appeared to be powerful factors mediating between fathers' stated desires at the time of divorce and the final outcome of paternal non-custody, and between these desires and fathers' subsequent inaction vis-a-vis pursuit of custody.

The role of lawyers was crucial in transforming fathers' aspirations regarding what they could achieve through the legal system; lawyers assumed a key role in persuading fathers not to pursue custody, or lessening their aspirations concerning their level of post-divorce contact with their children. In 55% of cases, lawyers actively discouraged fathers from pursuing custody; only 12% agreed with or encouraged it. Fathers were often told that a "reasonable" amount of post-divorce contact was the "customary" pattern of fortnightly access. In a field that relies heavily on precedent for its decisions, it has been convenient and comfortable to recommend what has gone before; the precedents of maternal custody and twice-monthly paternal access have become, in the eyes of lawyers and the judiciary, not only customary, but somehow developmentally and morally correct (Felner et al, 1985). Fathers wanting custody of or open access to their children are viewed with suspicion; mothers who wish to accommodate such fathers are advised not to "give up" too much (ibid.) For non-custodial fathers, the pattern of "visiting" their children on a weekly or fortnightly basis--at best, 2 days out of every 14--has thus continued, despite fathers' strong dissatisfaction with the limited nature of such contact, children's yearning for increased contact with their fathers, and mothers often feeling overwhelmed by the sole responsibility for their children after divorce.

Lawyers play a central role in providing their clients with a basic knowledge of the law and legal processes, helping them to decide what to ask for, and shaping expectations of what they will get. If lawyers' advice regarding post-divorce contact is discouraging, it is likely that fathers will lower their expectations; if the expectation that the best fathers can hope for is limited access, these expectations shape what fathers strive for--and settle for. Given that most custody and access arrangements only reach the court as a fait accompli, the way in which lawyers advise their clients is an important determinant of the final structural arrangements made. What lawyers advise is influenced by what they think the court will accept ("bargaining in the shadow of the law"). The majority of fathers, faced with explicit advice and strong direction from their lawyers toward maternal custody with limited parental access, and convinced on the basis of judicial precedent that they have a limited chance of success through the courts, eventually accept the predominant pattern of weekly or fortnightly "visiting":

"I got the impression that there would be no problem getting access, getting Andrew to stay with me on weekends and so on - but it didn't work out that way. He also told me that I should forget about custody, and to just concentrate on access, which I now realize was wrong". (Canadian "disengaged" father).

The lawyer advised me to give the mother interim custody and not to worry about it or fight it. I didn't know at that time that in fact, when you're talking about custody, nothing is 'interim' - anything that is 'interim' means that it is forever. I didn't know that at that time". (Canadian "disengaged" father)

"Initially when there's a separation, there should be someplace to go to try to save a relationship, rather than turning to lawyers and finding out what you're going to get and what you're not going to get through a divorce. The legal system makes things happen that should never happen--it calls for no effort on the part of the husband or wife. It's presented as the easiest, as the only alternative. Fathers are told that they should just give up the idea of custody--there's nothing positive fathers can do--and mothers are told that they'll get everything, they're entitled to it, and that the lawyers will get it all for them. For fathers a sense of resignation starts when lawyers tell them that they don't have a chance for keeping the same relationship they had with their children before they separated, and all kinds of other people--society generally--supports this view. It completely takes over as time goes on and fathers realize that the whole situation is hopeless. And they're left feeling completely helpless." (Canadian "disengaged" father)

By pre-adjudicating custody disputes on the basis of anticipations of what would happen were the dispute to be carried to court, lawyers perpetuate the (perceived) maternal custody bias of the judiciary: inaction because of an assumption of prejudice becomes a self-fulfilling prophecy, and reinforces the status quo. The feeling that fathers are at a severe disadvantage in relation to custody of their children in the courts is widespread:

"...They don't give men the benefit of the possibility that they may be good parents. They look at you as if you're doing something wrong, as if you're the guilty party. Lawyers and judges are the mainstay of the problems that men and children have, when it comes to men and children not having the right to maintain their relationship. And they support women if they decide to break the relationship - they promote women's anger and bitterness, and promote destruction of the father-child relationship. Before the separation, I had faith in the legal system. I've been through it and now find myself with no confidence in the system whatsoever. I believe in the truth, and I couldn't believe how full of lies the whole legal system is". (Canadian "disengaged" father)

If a father does not accept his lawyer's advice and seeks to challenge traditional custody and access arrangements, as was the case with a number of fathers in the present study, his lawyer may refuse to proceed with the application and to further represent his client or, if he "agrees" to contest custody, the father's case may not be presented strongly. The difficulty of obtaining legal aid for an action which is unlikely to succeed is endemic for divorcing fathers, while private litigants may be deterred by prohibitive legal costs (Parkinson, 1987). When custody is contested, as was the case with 15 men in the study, fathers and their lawyers are faced with a judiciary that in effect acts according to a maternal presumption, despite the gender-neutral standard of "the best interests of the child". The main issue in contested cases, under the rubric of "the best interests of the child", is usually the tolerable fitness of the mother, above all other factors. The outcome of contested cases, regardless of whom children are living with at the time of the hearing or of pre-divorce parenting patterns is, in the great majority of cases, a maternal custody determination. These contested cases define legal norms; they form the basis of a body of law upon which all divorced fathers are advised.

Custody determinations made by the courts, influencing the type of advice offered to fathers by lawyers, appear to be largely based on the assumption of fathers' secondary importance in their children's lives except in an economic sense; the nature of the pre-divorce father-child relationship does not appear to be a significant factor in legal outcomes. Lawyers' directions rarely differ for divorced fathers; sole maternal custody with limited paternal access was almost universally recommended for the fathers in the sample. There exists, however, a heterogeneity of fathering roles within families. Thus while there were no differences between highly and peripherally involved and attached fathers in the actual advice they received from their lawyers regarding custody and access, the outcome for each group was radically different in terms of satisfaction with the custody and access arrangements that were made and the level of their post-divorce contact with their children. It may be the very fact of uniformity of approach among lawyers and the unvarying nature of judicial resolution of custody and access vis-a-vis fathers with vastly different patterns and experiences of fatherhood that is largely responsible for the poor outcome of those fathers relatively highly involved with and attached to their children during the marriage. Fathers enter the legal process with very different pre-divorce father-child relationship patterns. While such heterogeneity warrants against a homogeneous approach, the legal process, bound by precedent, structures post-divorce relationships according to largely fixed rules that ensure that the "motherhood" and fatherhood" mandates remain intact.

As argued in Chapter 2, the state has a strong interest in the maintenance of appropriate work and family role behaviours. Upon divorce, the.judicial system has a central role to play in limiting child custody and access options, sanctioning and legitimizing traditional structures and relationships, and perpetuating a gender-based division of roles in the post-divorce family. The "motherhood" and "fatherhood" mandates are clear: the father remains responsible for children's economic support, the mother for their care. Thus we see a consistent pattern of decisions that both justify and reinforce a maternal presumption; this judicially-constructed preference has operated as effectively as a statutory directive (Weitzman, 1985; Foote, 1988).

Psychological factors

Grieving process. The intensity of the pre-divorce father-child relationship and its interactions is of paramount importance in determining the outcome of the grieving process of non-custodial fathers. Those fathers most involved with and attached to their children before divorce are most likely to acutely experience the negative effects of the loss or absence of their children, and are the group most at risk of losing contact with their children following divorce.

With a startling intensity, the disengaged fathers in the sample described being emotionally connected to their children in strong and intimate ways, defining their "fathering" role as a central component of their identity:

"Definitions of fathering vary tremendously but I personally would equate it with parenting: a complete commitment to one's child, the major responsibility in one's life, a combination of nurturance, encouraging autonomy and initiative within prescribed limits. It's setting the stage to allow a child to grow and develop his potential to the maximum". (British "disengaged" father)

"It means having an ongoing and continuing interest in the child's welfare during their life, even if they're doing things of which you don't approve. It means, on the one hand, being available when there are crises and difficult questions, and on the other hand being able to stand back a little and let the young person get a degree of independence. To make the young person value themselves as an individual and not just a clone of mother and father. It also includes a lot of physical things - washing sheets, ironing, making sausages. It means sharing things and sharing tasks, particularly when the wife is also doing a part- or a full-time job". (British "disengaged" father)

"It's a way of living - getting up with your children, eating with them, doing work together, reading with them, hugging them, putting them to sleep, dealing with their fears, and enjoying their pleasures - living with them". (British "disengaged" father)

Contributing to the chronic grief of disengaged fathers is the fact that while a salient loss has in fact occurred, the object of their grief is very much alive, and the grieving process persists as the finality of death is lacking. The predominant feature of the ongoing grief of disengaged fathers is a pervasive sense of preoccupation, loss, and sadness; depressive features are most often cited in fathers' descriptions of their post-divorce relationship with their children:

"I think of them everyday, almost constantly, although I never see them. I feel I am constantly searching for my children, I think I see their faces in other children's faces. It's a desperate kind of yearning". (British "disengaged" father)

"I have a constant, very real pain in my chest; there's tension, lack of sleep, constant worry ... I'm totally preoccupied with my son, and a lot of my time is spent trying not to think about what happened. But mainly it's a feeling of sadness, an emptiness, a kind of darkness". (Canadian "disengaged" father)

"I feel depressed and alone. At times I have a total feeling of despair, but I've got to gear my thoughts away from thinking like that. My heart feels like it's been ripped away, but I try to consciously steer myself away from thinking like that. I have to put on a facade of coping". (British "disengaged" father)

"I'm finding it impossible to adjust. I had a big part of my life that I enjoyed - and lived for - just taken away. I feel a big gap in my life that I can't fill. I feel that the less I see of him the farther away I'm getting from him. But the strain of seeing him for just a few hours a week was too much not only for me but on my son's side as well. The house is like a morgue - it's completely quiet, completely cold. I've felt very depressed but just have had to accept the fact that I've lost him and can't do anything about it. I've just had to accept the fact that I'm no longer part of his life ... I felt like a rat trapped in a cage. I felt on the verge of violence. I wanted to strike out against every member of her family. I felt paranoid - like I was falling apart, piece by piece. I couldn't concentrate on things - on anything, really. I felt mainly depressed after awhile - completely confused and hopeless after trying to think over what had happened and why it happened. Just a deep sadness about my son and about what had happened". (British "disengaged" father)

"Depression, a sense of being unable to help those that I love, a sense of worry about what's going on with the children, a sense of helplessness that the people I love the most I can't help, a sense of utter horror at what society is doing in requiring a father to go through horrendous long legal proceedings just to get permission to see his children, much less have any kind of normal father-child relationship." (Canadian "disengaged" father)

Child absence. Child absence produces a significant difference in fathers' perception of their functioning as parents after divorce. Feeling devalued as parents, previously highly involved and attached fathers described themselves as being rootless, having no structure in their lives, and generally anxious, helpless, and depressed. Actively involved in their children's care and upbringing within the marriage and deriving much satisfaction from parental tasks, these fathers had largely transcended the traditional "fatherhood mandate." They consistently referred to initial fears of a diminished relationship with their children, and subsequent preoccupation with the absence of their children. Feeling deeply attached to their children during the marriage, they saw themselves as primary or at least co-nurturers of their children--and could not, upon divorce, tolerate the idea that this function was in jeopardy.

Although child absence was manifested in a number of ways, the great majority of the now-disengaged fathers in the sample displayed a number of signs of depression, resignation, and a full grief reaction connected to the loss of their children:

"It's a very great loss. It makes me sad, I have periods of intermittent depression, I wake up at 4.00 a.m., I have a lot of sleepless nights. Of course my present wife has helped tremendously, and encouraged me to channel these feelings into positive endeavors. But there's a tremendous feeling of loss and sadness, and it's a loss which can never be regained. The period of a child's life growing, in Elspeth's case, from 8 to 14, is a vital period for her and a vital period for me, which has been lost forever". (British "disengaged" father)

"I feel very bad - I feel I am lost with nowhere to go, with no direction. And I feel no one can save me; I don't know how I can survive like this. I can't sleep - all the time I think about them". (Canadian "disengaged" father)

"Terrible. It's a piece of my life that's missing. There's not a day in my life that she does not enter my thoughts, in one way or another. It's a tremendous sense of loss that I'm left with--constantly." (Canadian "disengaged" father)

"I feel numb - I don't feel anything anymore. At first I felt completely terrified - for about 4 years. And then I just started losing all feeling. I don't know what I feel right now". (Canadian "disengaged" father)

The impact of child absence was as potent for those fathers who had not seen their children for several years as for those who had lost contact more recently. Time elapsed since the divorce, or since the last contact with their children, did not appear to diminish the intensity of fathers' grief.

Role loss. Child absence is accompanied by role loss: despite the fact that a "real" loss of children occurs after divorce, fathers also lose the status or role of "fatherhood"--for previously highly involved fathers, a major integrative force in their day-to-day functioning and an important component of their identity and status. As the child is lost, so is the "father" role and its functions and privileges.

Disengaged fathers, having enjoyed a relatively active pre-divorce "fathering" role, found it almost impossible to maintain their role as parents in the face of limited contact and a significantly decreased level of influence in all areas of their children's growth and development. The less opportunity fathers had to act as "fathers", the less they saw themselves as "fathers". Role loss can lead to retreatism (Merton, 1968); the most previously involved and attached fathers, faced with child absence and perceived role loss, feel their ability and confidence vis-a-vis their "fathering" role to be drastically undermined:

"Whereas I know I displayed confidence and skill in rearing my child before the separation, I feel quite uncomfortable around young children now. Even after a few days of being separated from my son, I initially felt anxious and awkward when I did see him and he reacted also in an awkward fashion. I very much question my abilities now, although I still feel a great yearning to be a parent and to utilize the talents I know I have. I just feel a tremendous lack in my life". (British "disengaged" father)

"I don't really think I have parenting abilities now because I don't live with them. A parent should be a person that's there all the time. Now it's just like seeing someone that you care about, but only during certain periods, certain times--it's not really being a parent. To be a parent you've got to actually be there as they're growing up, and I haven't done that in the last few years. At best I'm just a friend." (British "disengaged" father)

Parkes (1986) and others have identified the gaining of a new identity as crucial in the resolution of the grieving process; this was particularly problematic in cases where a father's identity was largely defined by his relationship with his child. Further, the father-child relationship meets the needs for nurture, affection, love, and status for both father and child; children satisfy longings for genetic immortality, intimacy, and family life--this too is lost after divorce. According to Erikson (1963), "generativity" is a critical stage of the growth of the healthy adult personality, and "regression from generativity" results in a sense of stagnation and interpersonal impoverishment; an individual's development thus necessitates the opportunity for active and ongoing parenting.

The "visiting" relationship. An important psychological barrier to non-custodial fathers' post-divorce contact with their children is their inability to adapt to the constraints of the "visiting" relationship and to construct a new role as "part-time" parent after divorce, a particularly significant component in the disengagement of those fathers who had an active role to play in their children's lives during the marriage. Highly involved and attached fathers face the most abrupt disentanglement from the routines and events of day-to-day life which had structured their parenting role; their ongoing relationship is severely restricted by the legally-determined patterns and constraints of access "visits".

Disengaged fathers' conceptions of what "fatherhood" constituted were diametrically opposed to the structure that had been imposed upon them. For these fathers, "real fatherhood" meant living with their children on a full-time basis and sharing in everyday life with them. They felt "confused" and "lost" without their children and being with them on a full-time basis. They had a particularly strong desire to continue to be influential in all aspects of their children's growth and development, values and lifestyle, which they found difficult or impossible to do within the constraints of "visiting".

Confirming the findings of Wallerstein & Kelly (1980), the study found the pain of the visits themselves--their brevity, artificiality, and superficiality--exascerbated fathers' sense of loss. Access visits symbolized the abrupt ending of the pre-divorce father-child relationship and emphasized what had been lost in the divorce: the loss of their children and of the daily routine that had previously sustained the relationship.

For previously involved and attached fathers, "visiting" their children mainly exacerbated already-intense feelings of loss and deprivation:

"I find that visiting is very hard. The time is very restricted, the constant burden of a limited, restricted time is a very great pressure. There's a constant feeling that they're not your own any more - you try to fight off this feeling, you feel very emotional about it". (British "disengaged" father)

"Living with would be so much easier than visiting, if I had the opportunity to do so. Visiting was very, very stressful, extremely upsetting. The changeover in my own case was very, very difficult, because of constraints put upon the children by my wife and her parents. Things weren't made easy because of comments from my mother-in-law or my wife. It was very cold, unfeeling. If I were living with them, there'd be more time to establish a father role, more chance of a bonding, of a better bonding". (British "disengaged" father)

"I think visiting is just a tease. It's frustrating and it's unsatisfying, and it's not a normal father-to-children relationship..." (British "disengaged" father)

Disengaged fathers also saw "visiting" as harmful to their children, especially in situations of extreme conflict between the spouses after divorce--adding further to their feelings of hopelessness, resignation and depression:

"It's no good at all - it affects them badly in all areas of their life. In a visiting relationship the children always get what they demand from the father, because the father will do anything he can so that the children enjoy themselves - just because he's not sure if he'll actually see them the next time. And when they go home the atmosphere with the mother is different, and they miss their father. It affects them at school, at home, and in their relationships with other children. They keep asking themselves why they don't see their father like they did before". (Canadian"disengaged" father)

Those fathers who were highly involved with and attached to their children before divorce and managed to remain in contact with their children after divorce were those who were able to arrange (in most cases mutually with their former spouses) an open and frequent schedule of contact with their children. These fathers reported that a co-operative and supportive post-divorce relationship had developed between the former spouses in regard to their parenting responsibilities. The nature of the non-custodial parent-child relationship is thus affected both by the frequency and length of contact after divorce, with frequent and lengthy contact, (as opposed to "visiting") being much more likely to ensure continuity of contact in the case of fathers actively involved in their children's lives before divorce.

Perceived effects of divorce on children. A primary factor associated with the disengagement of previously highly involved and attached fathers was their perception that their children were being "caught in the middle" of an adversarial legal process and ongoing conflict between their parents. These fathers were reluctant to continue to expose their children to conflict, or to utilize what they considered to be "violent" means to "win" their children's custody, a process they believed to be potentially highly damaging to their children. Fathers' prevailing concern for their children's well-being thus functioned as a "Catch-22" against them: if a father was concerned about exposing his children to what he considered to be a "violent" process, or if he wished to not disrupt his children's lives further by challenging custody and upsetting their "status quo", his ongoing contact with his children after divorce may well have been in jeopardy.

Disengaged fathers were more attuned to the potentially negative impact of the divorce on their children, a reflection of their previous attachment to their children. They believed that their children recognized their fathers' importance in their lives and would be severely affected by the rupture in the relationship. These fathers felt that their children's health and development was very much in jeopardy as a result of father absence after divorce:

"Given the close relationship that we had, I knew it would affect her negatively. I knew it would affect her, but in what way I didn't know. And I suppose I didn't give it the concern it should have received, in retrospect, because I thought it would only be a temporary situation. I suppose that this is how I've rationalized it". (Canadian "disengaged" father)

"I don't feel that they've got a stable life, where they've got someone to fall back on to talk to. I know they've got their mother, but she's with them day after day, and it's not a shared responsibility. She just can't spend the time they need with them, whereas with two parents, you give each other a break, or you bring a different attitude toward them. They've only got one view of life, basically, and they don't have two people to give them a variation." (British "disengaged" father)

"I think they have lost a sense of security, and there is a total lack of any fatherly role, which I think is very detrimental to them. They've lost the love of and for their father". (Canadian disengaged" father)

"He's very upset, sad, wondering why I've left, why his life has been turned upside-down. I'm very concerned about the long-term psychological effects--having a chip on his shoulder, wondering why his father left him." (British "disengaged" father)

Paradoxically, disengaged fathers stressed the importance of continued paternal contact as critical to their children's well-being after divorce:

"It is important to maintain the relationship in spite of the difficulties. It depends on the situation before separation. If the father had very little contact before separation, it's not so important to maintain links. But if he's closely involved in bringing up the child, he has to keep up the relationship. When it comes down to it, a person's security is rooted in his parents. This is very fundamental - security. A child should know where he came from, what his roots are". (British "disengaged" father)

"The effects on the father are double-edged. A little bit of contact for someone who wishes to be a full-time father is a crumb from the rich man's table, and I would feel that the little bit of contact would add greatly to the father's distress when he goes away, or when the child goes away. But that father is an adult and I think that disadvantage emotionally of the recurrent sore of leaving his own child has to be taken for the sake of that child". (British "disengaged" father)

Cross-national Comparison

A final comment in regard to the data concerns the absence of findings of significant differences between the Canadian and British subsamples. While some differences between fathers from Canada and Britain obtained in relation to some of the legal aspects of the divorce, these were negligible in comparison to the striking differences between contact and disengaged fathers in relation to a large number of variables. The differences between contact and disengaged fathers were virtually identical in the two locales; where significant differences between fathers who remained in contact with and those who became disengaged from their children were reported, these applied equally for the Canadian and British subsamples.

While it appears that in the Canadian context there is wider public discussion of alternative post-divorce structural arrangements than in Britain, particularly in light of the higher rate of mothers with dependent children being employed on a full-time basis in Canada, legal structures and processes dominate in matters of child custody and access in both locales, and the actual outcomes of these processes are almost identical; that is, the percentage of divorced fathers becoming non-custodial parents and the influence of the legal system in promoting traditional family structures after divorce are equivalent. The legal appropriation of custody and access determination--and the consequences of this--is highly similar in the two jurisdictions.

The main findings of the study--the grief reaction of non-custodial fathers attendant to divorce, the discontinuity between pre- and post-divorce father-child relationships, the discrepancy between fathers' stated desires at separation and what they finally obtain through the legal system--were equally manifest in Canada and Britain. The lack of any substantive differences in the geographical comparison, with parallel data obtaining between Canada and Britain, limits alternative hypotheses, contributes to the validity of the data, and allows a measure of generalizability of the findings not otherwise available.

Posted with permission by coparent@interchange.ubc.ca

See also:

Edward Kruk, Ph.D..  Address details and references to other writings by him are accessible at http://www.swfs.ubc.ca/about_us/faculty_pages/kruk.htm and at his own website.

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