PUNCHING THE PARENTING TIME CLOCK: THE APPROXIMATION RULE,SOCIAL SCIENCE,AND THE BASEBALL BAT KIDS*

The American Law Institute proposes that in contested physical custody cases the court should allocate to each parent a proportion of the child's time that approximates the proportion of time each has spent performing caretaking functions in the past. Examined through the lens of child development research, the approximation rule is unlikely to improve on the best interests standard. It is difficult to apply; is perceived as gender‐biased; creates a new focus for disputing parents; renders a poor estimate of parents’ contributions to their child's best interests; overlooks parents’ intangible, yet significant, contributions to their child's well‐being; and miscalculates the essence of how a child experiences the family. A preferable alternative is a better defined, contemporary best interests standard that accommodates new knowledge and reforms that encourage nonadversarial, individualized resolutions of custody disputes.     

论子女最佳利益原则

子女最佳利益原则已发展成为各国家庭法在处理父母离婚后子女监护案件时的最高准则。虽然该原则其概念本身含有不确定性 ,具有多种可以不同明确表达的空间 ,但采用该原则的世界各国仍致力于列出若干决定子女最佳利益的具体准则。本文作者主张我国婚姻法应引进“子女最佳利益”原则作为处理子女监护问题时的最高指导原则 ,摒弃父母权利本位思想     

COMMENTARY ON TIPPINS AND WITTMANN'S "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:

Although in substantial agreement with Tippins and Wittmann's analysis, their call for a moratorium on the practice of custody evaluators making recommendations to the court does not solve the many problems that they have raised, and may have unintended consequences which place families at even greater risk. This commentary reflects our agreement with some of the authors' major points of contention, focuses on several points of disagreement, and suggests alternative remedies for the shortcomings and ethical problems described in child custody evaluations.     

CHILD CUSTODY EVALUATIONS: THE NEED FOR SYSTEMS‐LEVEL OUTCOME ASSESSMENTS*

Child custody evaluations need to be studied systemically as a human service system. There is little research on the history, caseload dynamics, economics, delivery systems, or impact of custody evaluations. This article identifies five systems‐level questions about custody evaluations and examines one, outcomes assessment, in detail by developing seven outcome hypotheses. The article concludes that such research could improve the practice and use of child custody evaluations.     

TO RECOMMEND OR NOT TO RECOMMEND: THAT IS NOT THE QUESTION

Tippins and Wittmann provide a cogent argument for custody evaluators not to make recommendations to the court. From their forensic and scientific perspectives, they have identified some important issues, which will certainly stimulate interesting discussion among custody evaluators. In response to their article, it is my view that public sector custody evaluations offer a philosophical and procedural alternative to forensic evaluations. This article proposes that recommendations should be viewed as part of the process of evaluations rather than the outcome. Based on a qualitative and interpretive model, recommendations are judged based on their applicability, transferability, and transparency. Recommendations viewed in qualitative terms provide parents with opportunities to step out of litigation and provide guidance for parents' ongoing roles postseparation.     

CRITIQUE OF CHILD CUSTODY EVALUATIONS BY THE LEGAL PROFESSION

This study explored the congruency between child custody evaluations and the needs of the legal profession. One hundred twenty-one judges and attorneys were surveyed. In general, both groups expressed similar attitudes and beliefs. Findings indicated that court-ordered evaluations were most useful, and objectivity was paramount. Judges and attorneys also expressed a need for improvements in child custody reports, particularly greater child focus, provision of custody and visitation recommendations, discussion of legal criteria, and timely completion of evaluations. It is hoped that the findings will inform professional practice and help evaluators better serve the needs of the family court.     

Divorce related malicious mother syndrome

With the increasing commonality of divorce involving children, a pattern of abnormal behavior has emerged that has received little attention. The present paper defines the Divorce Related Malicious Mother Syndrome. Specific nosologic criteria are provided with abundant clinical examples. Given the lack of scientific data available on the disorder, issues of classification, etiology, treatment, and prevention appear ripe for investigation.     

SURREPLY

This is a follow‐up to our previous “Comment” responding to an article by William How and Hugh McIsaac.     

A COMMENT ON WILLIAM J. HOWE AND HUGH MCISAAC'S ARTICLE “FINDING THE BALANCE” PUBLISHED IN THE JANUARY 2008 ISSUE OF FAMILY COURT REVIEW

This article is a response to an article written by William Howe and Hugh McIsaac that questions their recommendations that court‐based mediation not be used when certain types of persons appear in court. We assert that it will be very difficult for the court to identify these people. Further, we argue that mediation practice has advanced so far that even these persons (those with serious issues of domestic violence, substance abuse, and mental health) should be given an opportunity to participate in mediation before being referred to the adversarial court process.     

COMMENTARY ON “EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:” WHAT NOW?

Replying to the paper by Tippins and Wittmann, this commentary notes that the problems they identify have been recognized for many years, yet this has resulted in little change in the practice of child custody evaluations. Three underlying reasons are offered for the stalemate that frustrates the implementation of standards for an empirically based child custody evaluation practice: (a) the economics of child custody evaluation practice; (b) inconsistencies between proposals to restrict testimony in this area and the lack of similar restrictions in most other areas of forensic practice; and (c) inadequate motivation for researchers who might contribute an empirical base for child custody evaluations. Directions for breaking the stalemate are offered for each of these problems.     

EXTENDING COMITY TO FOREIGN DECREES IN INTERNATIONAL CUSTODY DISPUTES BETWEEN PARENTS IN THE UNITED STATES AND ISLAMIC NATIONS

International custody disputes involving parents and children from Islamic nations and the United States have yielded a spectrum of interpretation of Islamic Shari'a law and the best interests of the child. The lack of a determinative treaty between the United States and all but one Islamic nation has led to an inconsistency of criterion in determining whether to extend comity to a custody decree from a court of an Islamic nation. The domestic law statutes, which determine jurisdiction in these matters, have provisions for international application and recognition of foreign custody decrees. The recognition of custody decrees from the courts of Islamic nations is contingent upon the satisfying of procedural and substantive thresholds. Focusing on the substantive, the author opines that American courts have a responsibility to understand certain aspects of the law, culture, and religion of Islam in order to accurately determine if the threshold has been meet.     

REJOINDER TO GARDNER'S "COMMENTARY ON KELLY AND JOHNSTON'S 'THE ALIENATED CHILD: A REFORMULATION OF PARENTAL ALIENATION SYNDROME'"

In this reply to Richard Gardner, we outline our points of disagreement with his formulation of parental alienation syndrome (PAS), showing that his focus on the alienating parent as the primary cause of children's negative attitudes and rejecting behavior toward the other parent is overly simplistic and not supported by findings from recent empirical research. It follows that we strongly object to Gardner's recommendations for legal and mental health interventions with alienated children as well as the use of the term PAS when referring to this problem.     

U.S. child custody outcomes in cases involving parental alienation and abuse allegations: what do the data show?

ABSTRACT

Family court and abuse professionals have long been polarized over the use of parental alienation claims to discredit a mother alleging that the father has been abusive or is unsafe for the children. This paper reports the findings from an empirical study of ten years of U.S. cases involving abuse and alienation claims. The findings confirm that mothers’ claims of abuse, especially child physical or sexual abuse, increase their risk of losing custody, and that fathers’ cross-claims of alienation virtually double that risk. Alienation’s impact is gender-specific; fathers alleging mothers are abusive are not similarly undermined when mothers cross-claim alienation. In non-abuse cases, however, the data suggest that alienation has a more gender-neutral impact. These nuanced findings may help abuse and alienation professionals find some common ground.