Doctor of Pedagogic
Sciences,
Pluzhnik Irina
Tyumen State University: Grant
of Russian Foundation for Humanities «Protecting the rights of children in Russian-Finnish families:
international standards, cultural differences, constitutional law foundations» ¹ 14-03-00524.
Children’s Rights Protection in Intercultural
Marriages’ Conflicts
Children’s
rights protection has become a big issue in the global world which is
marked both by the dramatic increase of
intercultural marriages and by no less
dramatic number of separations and
divorces impacting their off-springs.
It
is unlikely that couples can escape conflicts in their relationships, as they
have different moods and preferences, and fulfilling one person’s goals could
hinder the other.
Couples
perceptions, thoughts, values, and feelings influence how they interpret
conflict situations, and can strongly shape the outcomes of conflicts.
(Coonjbeeharry, 2011). Intercultural conflicts occur when there are differences
between individuals with different cultural backgrounds. These include
differences in people’s motives, goals, beliefs, opinions and behaviors. Different individuals cannot be the same,
buts the critical factor that may cause
conflict is when one person’s wishes or actions hinder those of the other
person. This situation grows particularly bad when parenting is at stake. As a
result of divorces in mixed marriages it often happens that children’s rights
are infringed.
Culture
is called the driving force for parental behavior (Owen, 2002), because it is
based on a pattern of traditions, norms, values, beliefs, attitudes, symbols
and interpretation of meanings that are shared to varying degrees by
interacting members of the community (Ting-Toomey, 2005). Intercultural marriage or partnership is a unit raising
biological, adopted or step children together in a single household.
Background of the research
Growth
of mobility and immigration in the second half of the twentieth century led to
the demographic trend point to an increase in the rate of intercultural
marriages and relationships across the
world, including interracial, interfaith and interethnical marriages and partnerships. Consequently,
intercultural parenting is shaping as an emergent theme within the family
structure). According to the 2001 Census from the European Bureau of
Immigration and Population of about 16 percent of European couples were in
international marriage. The data from
the European Bureau of Statistics (2011) on marriage and divorce in European
countries indicate that 30 percent of all declared married households (including
partnership) are in relationship with a person born from a different country.
A
primary focus of the literature on intercultural marriage relates to the
challenges and conflicts in such partnership, but few literature on intercultural marriages has focused children’s legal
rights protections when a
family splits up. The convergent
theme in the literature on opposite text I/C partnership is that parenthood is
the flashpoint for conflict, because cultural differences are amplified when
the children are born or when it comes down to a divorce). The laws, regulating the rights of children
of mixed divorced families greatly differ from country to country often
leading to traumatic after- split up
parenting relations and have harmful effects on the children.
Aims
of the article
1.To
explore and review the literature on
children’s legal rights protection in international families disputes.
2.To make an analysis of typical conflicts
couples’ conflicts arising from mixed cultural backgrounds in intercultural
marriages
3.To
examine the particular challenges, as well as
advantages and opportunities of intercultural couples in everyday
parental practice.
4.To classify possible strategies to enable intercultural families to
cope with conflicts affecting children’s rights.
Literature
review
No
matter how strange it may seem, but there is few literature on children’s legal
rights protection dealing with after-effects of divorce within intercultural
marriages. Most of the existing studies mainly focus on challenges and
conflicts between Asian, Black African and white couples (Bornstein, 2004;
Romano,1998;Crohn,1995) but not on its legal consequences. Few studies examined
the benefits of cultural differences and examples of good intercultural
parenting after a divorce or split up.
In
the existing literature on the topic in question there is a unanimous opinion
that conflicts in intercultural
marriage may arise because a couple exposes the underlying cultural
differences and discrepancies in the real core values of the intercultural spouses or partner including the styles of
parenting. The warning number of divorces leading to international court
proceedings leaves unhappy the parents
with different cultural heritage, respectively infringing the rights of
their children.
Nevertheless, now there is a move towards new
legal regulations development within the area of intercultural marriages with
the major emphasis on the rights and interests of children. Also, it is important to identify the ways
of cultural transition for intercultural couples that can lead to the
enrichment of each partner in the relationship and to enable the couples to
achieve positive personal
transformations through the process of mutual cultural adaptation. The latter
one is a steady route to avoid divorces and subsequent hard legal actions that
have harmful effects on the children that the couple raised.
Methodology
The author used a comparative analysis of
theoretical issues that stood the test of time or were approved by live
practice: cultural relativism and humanistic approach to the treatment of life
experience, practice and mass media information concerning intercultural
contexts.
International
couples divorces
In
recent decades it has become known that the rise in marriage across borders has
brought new problems—and an industry in handling international divorces. The
question is which country’s law should apply? The wife’s? The husband’s? The
country where they lived for most of their marriage? Or the one where they were
working when they split up?
The
jurisdiction can make a huge difference to the rulings that will determine the
future of the whole family: which parent has primary care of children, how
the assets are divided and how much maintenance is paid. England and Wales only
“take into account” prenuptial contracts which are binding in the US and some
of the EU. Malta does not provide for divorce at all, although it will register
foreign divorces. Austria and Poland consider which spouse was to blame for the
breakdown of the marriage. In France the law is mainly on the part of the men’
interests.
The
worst scenario is for the couple to fight it out in many jurisdictions at the
same time, leading to prolonged uncertainty and huge legal bills. There are,
however, guiding principles to try to minimize the problem. For a divorce
between an EU citizen and a non-EU citizen, the courts decide where the hearing
should be by looking at where assets are located, and what the outcome would be
in each country.
For
a divorce between EU citizens, the principle for nearly a decade has been that
the first court to be approached by either side will hear the case. It may look
clear, but it brings an incentive to rush. The spouse who waits, hoping for mediation
or to save the marriage, might lose out badly. One of the main issues impacting
upon cross-border couples is the race to issue proceedings.
The
EU sees the problem at its worst because the right to travel, live and work in
other countries has facilitated cross-border marriages. Of the 2.2 million
marriages in the EU each year, about 350,000 involve such couples. The EU has a
comparatively high divorce rate, of the 875,000 divorces, about 16% are
international. In England and Wales, an estimated 24,000 of the annual 150,000
divorces are international.
Several
years ago, the EU tried to remove the incentive with a proposed agreement
between member states, called “Rome III,” under which courts in all member
states would apply the law of the country where the couple had spent most of
the marriage.
It
was suppoted by nine countries, led by France and Spain, where legal systems
are derived from Roman law and allow little room for precedent or judge’s
decision. But Rome III clashes with English law, which is developed through
cases. Sweden was also rattled by the notion that its courts might be obliged
to apply sharia law if a spouse had come from an Islamic country. Rome III
collapsed amid a level of acrimony found in the nastiest divorces. Also, a
number of nasty divorces and further long-term litigation took place with
Russian–Finnish couples disputes concerning the rights to their children’
custody after the divorce. The mail point of disputes is usually the
issue dealing with parental responsibility.
In
the materials of the UK government it is stated that fathers’ parental rights
actually do not really exist in the UK
law (http://www.dad.info/divorce-and-separation/fathers-rights-and-law/fathers-rights-to-see-their-children-law-in-the-uk#sthash.224cvUkH.dpuf). Instead,
the law refers to parental responsibility.Fathers rights to see their children are not set out in UK law as such,
but depend on a number of factors, or which Parental Responsibility is just
one. Having said that, PR (or PPR) gives you the right to contribute to
decision making regarding your child's future such as: giving consent to
medical treatment, deciding how they should be brought up, choosing their
school, choosing their name, choosing their religion. The information presented in
Huffington Post UK (PA/Huffington Post UK Posted: 03/02/2012 07:58 GMT Updated: 03/02/2012
07:58 GMT) states
that divorced and separated fathers will get stronger rights
to see their children, in a recognition of equal parenting. There is a possibility that new rules will be
"much clearer that it is vital for children to have an ongoing relationship
with both parents", the Department for Education said.But the ministers are still not sure whether disappointed fathers' rights campaigners will
get legal guarantee of equal access and that the expectations
may be false. At the same time, Children's Minister Tim Loughton said the
state clearly had a duty to make sure decent, loving fathers were not
"pushed out" of their offspring's lives and it would act to do so. It sounds optimistic that the Government will pledge
an extra £10 million for mediation services in a bid to reduce the number
of cases going to law. But
when disputes end up being settled by the courts - presently around one in 10 -
it will promise to find ways to ensure no parent is excluded unless they pose a
safety or welfare risk .A
working group will examine potential changes to the Children's Act 1989 to
embed the rights.Mr Loughton said: "There is a familiar picture in the UK
of parental separation leading to thousands of children losing meaningful
contact with the non-resident parent, usually the father.It is right that we
consider all the options to help ensure that children can continue to have an
ongoing relationship with both their parents after sesparation“ Children will be given legal rights to see both
their mother and their father in a shakeup of the family justice system. In this respect a good example is Scotland, where responsibilities and parental
rights is a legal status that means that they have a duty to care for
and protect their child .
In
the Clicklaw Wikibook JP Boyd on Family
Law it is pointed out that „when a family involved in a family law dispute has children, they must make
decisions about four important issues: where the child will live, how parenting decisions will be made, how often
each person will see the children and
how the children will be provided for.
Parents have legal rights and responsibilities known as parental
responsibility. It includes provision a home for the child
and protection and maintaining the child. If one of the parents have
responsibility for a child s/he you doesn’t live with, s/he doesn’t necessarily
have a right to contact with them - but the other parent still needs to keep
you updated about their well-being and progress. It is stressed that even if a parent
doesn’t live with a child, s/he
is still responsible for disciplining the child, choosing and providing
for the child’s education, agreeing to the child’s medical treatment, naming
the child and agreeing to any change of name, looking after the child’s
property.
In
intercultural marriage conflicts leading to split up or a divorce . After a divorce or separation in intercultural families a child has a right to a
meaningful relationship with both parents, be protected from neglect of family
violence and proper parenting to help them achieve their full potential, a support and encouragement to maintain the
connection with their culture.
The concept of
'shared parenting' after a break-up often gets confused with the idea of equal
time that a child spends with each parent.A change of law in Australia designed
to promote shared parenting fell into this trap and caused delays to the
resolution of custody disputes, which was manifestly not in the best interests
of the child. In all of this, the most important thing remains the principle
that the child's welfare is the paramount consideration and this must not be
diluted." "The state cannot create happy families, or broker amicable
break-ups. In case of litigation in intercultural families
disputes a judge decides about custody
and access of one of the parents to a
child. The judge's main concern will be what is best for you. In figuring
this out, the judge considers the following sorts of things: the love, affection and emotional ties between a child
and his parents and involved in caring
for him/her. Among them are: views and preferences of a child, whether the
parents are able and willing to care for a child’s properly, the plans your
parents have for a child.
In Australia for
married spouses, the law about children after separation is governed by the federal
Divorce Act as well as the provincial Family Law Act. For
unmarried spouses and other unmarried couples, the only law that applies is the
Family Law Act. Although married spouses can ask for orders under both
the Divorce Act and the Family Law Act, it's best to pick one or
the other. This is because the two laws approach the care of children with
different attitudes and use different language.
The analysis of the
issues in question enables us to make a
conclusion that there is still a big gap in law concerning parental responsibilities in intercultural
families after the end of their
marriage when it gets down to a child’s
custody or care.
The situation
concerning intercultural marriages’
disputes resolution is aggravated
either by the lack of laws, or poor laws, or clash of laws of the
spouses’ native countries. But the steps are made to improve the
situation. For instance, the EU may yet revive the pact for 12 countries, though not Britain. The
strive for certain balance and harmony
is rising in different countries. Also,
on 20th October, the British Supreme court ruled that the prenuptial agreement
between a German heiress, and her French ex-husband, was legally enforceable.
This significantly raised the legal status of such agreements in England, even
though they will not be binding unless Parliament passes a law.
Types
of conflict in intercultural marriage
If
there were no family conflicts, split-ups and divorces, there would not be the
need for child’s custody or shared parenting. People in intercultural marriage
no matter to what culture or ethnicity they belong, are individuals whose behavior in family relations manifest some typical
features when problem-solving. In the research by Gottman and Silver
(2013) there were singled out three
types of problem-solving approaches in healthy marriages, volatile( having
frequent passionate arguments), validating (trying to persuade their partners,
and find a common ground in the end), and conflict-avoiding( believing that their common ground and values are much
greater than their differences). These
three approaches can lead to stable and enduring marriages. However, a fourth
approach to conflict resolution, hostile, is likely to end in divorce. Certain
important qualities of each approach predict whether or not a marriage will end
in divorce.
There
are more positives than negatives in the marriages of volatile, validating, and
conflict-voiding couples. However, for hostile couples, there are more
negatives than positives in their marriages. Volatile couples balance their
emotions with affection and humor. In contrast, avoiders are not particularly
demonstrative, but they don’t have a lot of negative feelings to overcome.
Further, validators show a lot of self-control, and are concerned about each other's
feelings.
What
is important, with these three types of couples, is that the positive and
accepting aspects of their interactions substantially outweigh the negative
aspects. But this is not so for hostile couples, who are contemptuous in their
interactions with each other, and fail to maintain a positive balance.
Four
primary toxic behaviors that contribute to couples feeling disconnected from
each other and predict divorce are criticism, defensiveness, contempt, and
stonewalling, and they are likely to lead to divorce in marriages.
The
authors of this research are of the opinion that these four negative patterns
are like the “four
horsemen of the Apocalypse” in the book of Revelations, "they spell the end of
days."(Gottman and Silver,2013) As the levels of these behaviors increase,
loneliness and isolation also increase, and there is likelihood of marital
disintegration that could lead to divorce.
In
interpersonal relations the above conceptualized areas of conflict assist in
describing four potential styles of handling conflict in intercultural
marriages. The first domain involves the concern one has for self that is
defines as high or low. The second sphere derives its categorization related to
the concern one has for others, be it high or low. Combining these two fields
Tiffany G.Renalds (2011) singles out 5 specific conflict styles related to
intercultural marriages when interpersonal conflict emerge: dominating
,obliging, avoiding, integrating and
compromising. The first three interpersonal conflict styles side with the above mentioned styles leading to the end of
relationships.
The
above mentioned ways of dealing with conflicts can be even worsened if to
project them onto the matrix of cultural differences taking place in
intercultural couples. Cultural differences are explained by the culture type
differences of each of the spouse in an intercultural marriage.The are two
dominant culture types – high context cultures and low context cultures
(Hofstede, 1984). In intercultural, interpersonal conflict, one must evaluate
the role culture plays in conflict. The clashes in marriages with high context
and low context cultures as well as collectivistic and individualistic ones
have more potential for conflicts and end of relationships. Individualism is
described as a value system that makes individuals responsible for their own
behavior and corresponding results. Individualists typically focus on their own
needs, interests and goals. On the other hand, collectivists tend to look at
their own behavior and how it impacts others in their in- group. If needed,
they are more likely than individualists to give of themselves in order that
the group can prosper. Hofstede(1984) explains, “The relationship between the
individual and the collectivity in human society is not only a matter of ways of living together, but
it is intimately linked with societal norms in the sense of value systems
of major groups of the population”(p.149).The majority of collectivistic
cultures utilize high-context communication, whereas individualistic cultures
rely on low-context communication. Hall (1981) defined high-context
communication as “transactions, which feature programmed information in the
transmitted message”(p.101). In contrast, low -context communication is “the
reverse. Most of the information must be in the transmitted message in order to
make up for what is missing in the context” (p.101).By identifying and understanding
these culture typology including such
variables as individualism/collectivism, power distance, uncertainty avoidance,
masculinity/femininity and short/long-term orientation within cultures people
will have a better opportunity to engage in intercultural communication leading
to conflict resolution. It has been pointed out by Oetzel (2007) that the
aspects of individualism/collectivism and power distance are most commonly
credited in comprehending intercultural conflict. We suppose that conflict
styles can be managed and constructed in such a way that culture is integrated
within the explanation and understanding of these styles. However, conflict is
a dynamic process that could initiate change through growth instead of
destroying relationships).
The
strengths and opportunities for coping with intercultural conflicts may include
the following: shared adversity that can develop strength and reliability;
cultural diversity that can provide greater richness and variation for
potential solution; sensitivity to the nuances of different cultures; broader
worldview of the world by bicultural children.
Negative
interactions are balanced by positive ones in stable marriages. The dynamics of
the balance between negativity and positivity are what separate contented couples
from discontented ones.
Cultural and societal values and norms impact on the methods of child rearing used by parents
.Different cultures across the globe adopt different parenting styles. The
theorists put forward 5 different parenting styles. Diana Baumgrind,1971) classifies them as follows:
authoritarian
- telling the children what to do but not responsive;
authoritative-
providing rules and guidance but being responsive;
permissive
- very involved with children but place few demands and control on them;
neglectful - disregarding and not involved in the child’s life (Maccoby and
Martin,1983);
ethical
parenting style (Soloveychik,1986) -
when parenting goals, conditions and means of child-rearing are in tune with the child’s internal world.
It
is a well- known issue that most marital conflicts occur during child-raising
phase. Intercultural couples exhibit differences in negotiation style due not
only to gender and ethnic difference in the relationship but also to conflict
of norms, values,
Beliefs,
attitudes, meanings and rituals. Also, the level of emotional involvement with
children varies greatly from culture to culture. It may be distal, like in Scandinavian countries or proximal,
like in Spain or Italy (Hsu,1991;Keller,2004).It is argued
that the conflicts over child rearing
may be explained by the following reasons: educational goals,
disciplinary styles, forms of parent-child relations; different gender role expectations
and division of household labour; discrepant child rearing expectations;
divergent roles and expectations of the
extended family members (Joshi and Krishna, 1998)and styles of communication
with the children.
As
it can be seen from above, challenges in childrearing in multicultural families
may be categorized into 5 main reasons,
such as
-
inherent stress ( as the birth of a child
becomes the stress point for couples because of the necessary
realignment within the marital dyad to a family dyad (Tzeng and Hsu,2001);
-
variation in child rearing practices ( differences in fundamental values such
as independence, autonomy, conformity and obligation;
-catalyst
for conflict( for couples who previously minimized the impact of their cultural
diffrences (Tzeng and Hsu, 2001);
-contradictory
goals, conflicts over discipline and parenting styles, racial and cultural
identification, appropriate age of the individuation and separation from the family of origin;
-
diverse languages utilizing that has an
impact on meaning distortion and leads to misunderstanding.
As
it is evident from the contents of the article, legal rights of children in
split up intercultural families are often distorted. In order to have a win-win
outcome for children from mixed marriages there should be two main
tracks going together – both
cross-cultural and legal awareness of the parents in intercultural
marriages.
Summary
The
analytical efforts made by the author made it possible to conclude that
children’s rights protection in international marriages largely depends on a
number of interrelated and integrative
factors dealing with family
cross-cultural sharing and mutual adaptation to prevent the end of relations, interpersonal
qualities control with the emphasis on
positive supportive
behavior, compliance with the
law abiding issues concerning children’s well-being as a whole and international legal regulations
development for mixed marriages
conflict resolution. The author has also tried to contribute to the existing
knowledge base and to review court opinions concerning legal rights of the divorced parents to their child /children custody
and to sketch the possibilities of good
intercultural parenting including negotiating cultural differences and
integrating cultural values.
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Web resources
19.Clicklaw Wikibook JP Boyd on
Family Law.
21.PA/Huffington
Post UK Posted: 03/02/2012 07:58 GMT Updated: 03/02/2012 07:58 GMT).