Can Europe Make It?: Opinion

Shared parenting in Greece: three cheers for the Mitsotakis cabinet

“This coming autumn, the Greek right-wing government will be introducing shared parenting. This is a major egalitarian reform in family law.”

Vassilis K. Fouskas
29 June 2020
Father and child.
Father and child.
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Flickr/Nenad Stojkovic. Some rights reserved.

A better gift for Greek fathers in the runup to Father’s Day on June 21 could hardly be envisaged. Greece’s justice minister, Constantine Tsiaras, announced the preparation of a civil rights bill for the reform of Greek family law, whose last substantive revision dates back to the PASOK (Panhellentic Socialist Movement) years of the early 1980s.[1]

Not that current Greek family law is terribly bad. PASOK’s courageous reform of 1982-83, established gender equality and threw into the dustbin of history women’s discrimination at all levels. However, with the passage of time, problems cropped up with the implementation of the law, as judges, influenced by the dominant sexist culture – according to which fathers were seen as unfit to look after their children – were overwhelmingly assigning custody to mothers only. For a mother to lose custody in Greek Courts meant that she had either to be proved to be a “sex worker” or a “drug addict”.

Shared parenting, as a presumption in law, was never considered and feminist groups within left-wing parties never pressed for that. A common perception cutting across Greek civil society was the belief that it is not in the best interests of the child to become a little ping-pong ball bouncing from one parental home to another. Thus, a “judges code” was created assigning custody to mothers only and visitation rights to fathers – usually once or twice a week for 3-4 hours and only during the day. Overnight stay with the father once a week was and remains exceptional. This practice, notorious not only in Greece but everywhere in the world where joint custody is not a presumption in law, fomented a number of side effects –at the same time that it created first-and-second class citizens.

I outline three major flaws of the current family law system, whether in Greece or anywhere else in the world where shared parenting is not a presumption in law. These three flaws alone, I argue, deserve to achieve a cross-party political consensus in support of reform.

Three major flaws in the current family law system

Any legal family framework that does not have shared parenting as its default position in law presents three fundamental flaws in every-day practice. First, middle and lower-middle class fathers who dared to enter litigation demanding shared parenting/joint custody risked losing their child(ren) at the same time that they were asked to pay enormous amounts of money in child maintenance. The Greek family law system, as opposed to the English one, lacks a mathematical formula on the basis of which child maintenance can be calculated according to the income of the non-residential parent – in 98% of cases, the father. Contrary to the Greek system, the English system, which is antiquated in many respects, gives the right to both parents to split right down the middle all family assets (matrimonial house, land, property, business, cash, washing machines, car, belongings etc.), even if those assets were acquired before the couple got married: non-matrimonial assets are included in the division of assets between the spouses.

Thus, in England and Wales, a person entering marriage with no house or other assets, after 10 years of marriage, usually ends up having custody of both the child(ren) and half the assets brought into the marriage by the other parent – here, the longevity of the marriage, as well as other things, matter, but the norm is as just described. Pre-nuptial agreements are scarce: you don’t marry someone to become rich or poor, do you? You marry somebody because you are in love. The pathologies of both systems are very similar, although the legal costs involved in middle class divorce cases in England and Wales are vastly higher than in Greece or anywhere else in Europe.

Contact

The second observable flaw of the current family law system is the social practice of residential/non-residential parenthood and its detrimental side-effects on children and fathers. In practice, for a number of reasons, children are often “weaponised” by the custodian/residential parent, something which the Greek Minister made explicit in his announcement cited earlier. One common reason why this is happening is the amount of child maintenance received by the residential parent.[2] Although there is an enforcement mechanism for a non-residential parent who doesn’t pay child maintenance dues (a criminal offence), there is no corresponding framework regarding the refusal by the residential parent of contact between the child and the non-residential parent.

By and large, the same is the case in Europe and North America – the harshest enforcement laws against the father who doesn’t keep up with child maintenance payments are found in Germany and Canada. A common daily legal practice in Greece confirmed by my interviewees – keeping in mind that Greece lacks a mathematical formula for the calculation of child maintenance to avoid resorting to lawyers and Courts – is the submission of maintenance applications making the non-resident parent look like a financial elephant so that the judge awards a large payment to the residential parent.

This process is not necessarily driven by the residential parent. Rather it is driven by family lawyers favouring litigation every two years under the Greek system, when child maintenance is reviewed. The current legal loopholes have in this way created the practice of favouring litigation over the welfare of the spouses and the child because of potentially large legal expenses. Put bluntly, lawyers’ associations preoccupied with family matters have no vested interest in supporting shared parenting, preferring things as they are.

The result, usually, is an increase of the emotional distance between the non-resident parent and the child. That is how we arrive at the wide-spread phenomenon of parental alienation, a well-established term in the field of child psychology today.[3] The cases of parental alienation are reflected in contemporary research and widely recognised by think-tanks such as “Families Need Fathers” (England and Wales, see here), “Synepimeleia” (Greece, see here) or “National Parents Organisation” (USA, see here) as prevalent.

Leave to remove

The third observable flaw in existing family law, in all countries that lack joint custody, is that it allows the filing of so-called Leave to Remove applications. For the unacquainted, these are applications that permit the custodian/residential parent, usually the mother, to legally remove the child from the jurisdiction in which the child habitually resided.

By default, due to the sexist “judges code”, residential parents almost always win; they are the residential/custodian parents and “primary carers” and, as advised by solicitors in their Leave to Remove applications, custodial parents point out that they have “anxieties” and “psychological problems of adaptation in the country”.

As the argument in the Courts goes, “if the residential parent is unwell, then the child(ren) is unwell, so permission to leave the country with the children should be given”. This has often occurred in Greece, where many tourists have married Greeks but then decided to leave Greece and return to their country of origin. In England and Wales, middle-to-upper-middle class residential parents apply for relocation, even if their children are going to school.

This is one of the most costly and protracted legal processes that induce couples to litigate endlessly over the custody of the children, in addition to the allocation of assets, child maintenance and so on. It can last for many months and even years. There is a question whether it ever ends, because family law in England and Wales is extremely positivistic, separating the process into three different legal cases (trials): i) the divorce, ii) financial matters on divorce, and then iii) custody/Leave to Remove.

The residential parent usually wins, and the winner gets it all, whereas the non-residential parent becomes a “skype parent”, entitled to some obscure visitation rights in cases where the residential parent has obtained a “mirror order”[4] in her country of relocation – the Court Order assumes that the father, after this protracted battle, has funds to spend on visiting his children during Christmas, Easter and Summer holidays: to pay hotels and other costs, and to entertain the children.

No straight answers

The new family law bill that the Greek right is poised to institute this coming autumn will eradicate all three major pathologies analysed above, benefiting, first and foremost, children. In particular, it has the potential to fight the commodification of family relations and extravagances of the legal profession, especially if welfare support in poor families strengthens.

It relieves both parents financially from very large (and onerous) legal fees and avoids a practice that tends to alienate children further, especially from the non-residential parent. Children, after all, equally love and need both parents; we must challenge the presumption that living with the child’s mother is automatically best. The old system of creating residential/non-residential parents continues sexist assumptions about the role of women in caregiving. It fails to capture the social/technical division of labour in which almost 50% of the workforce are women. Imagine asking a five-year old the unfair and stressful question when the courts decide who should be the custodial parent: “Who do you love more, your mummy or your daddy?” You’re never going to get a straight answer, and quite rightly so.

Acknowledgements: I thank David Fasenfest and Bülent Gökay for detailed comments on earlier drafts of this paper. Any remaining errors are my own.

Endnotes

[1] “Tsiaras: I’m in favour of joint custody”, Athens Voice, 19 June 2020 accessed on 20 June 2020).

[2] Two barristers practicing family law in Greece have kindly accorded me interviews: personal interview with Greek Barrister, Vasileios Panoulas, 18 April 2016, Arta, Greece; personal interview with Greek barrister and expert in family law, Andreas Kioupis, 25 July 2019, Athens, Greece.

[3] See especially, Jennifer J. Harman, William Bernet and Joseph Harman, “Parental alienation: The blossoming field of study”, Current Directions in Psychological Science, v.28, n.2, pp.212-217. For contemporary empirical researches, see “The UK parental alienation study”. This report was commissioned by Good Egg Safety CIC, an independent think-tank, supported by Families Need Fathers, a UK government charity. It is based on 1,500 questionnaire responses by separated parents and is gender-balanced. The Chair of Good Egg Safety CIC, Jan James, believes that “parental alienation is an international scandal and one which can damage children for life” (see here ).

[4] A “mirror order” is the Court Order that orders contact and rights for the father, produced in the country in which the children used to reside until the leave to remove was conceded. For example, if a mother in Court in England and Wales wins a leave to remove case to relocate with her children to New Zealand, the judge asks the mother to honour a mirror order in New Zealand, setting a time limit – usually one month after arrival. No enforcement mechanism exists. If the mother refuses to abide by this, the father has to pursue an expensive case in the distant foreign country.

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