A NATIONWIDE SURVEY OF PROGRAMS FOR CHILDREN OF DIVORCING AND SEPARATING PARENTS

This article surveys programs for children of separation and divorce throughout the United States. It provides an overview of their development and discusses some of the research which has been performed to measure the efficacy of them. It focuses on some specific programs, and it provides information about the types of programs which are available in each state. Finally, it provides insights into the next steps for such efforts.     

SAME‐SEX MARRIAGE AND DIVORCE: A PROPOSAL FOR CHILD CUSTODY MEDIATION*

Same‐sex marriage is a contentious, politically charged issue full of diverse, complicated considerations. In 2003, Massachusetts joined the list of jurisdictions to legalize same‐sex marriage, the first in the U.S. Now that same‐sex couples can marry in particular international jurisdictions, governments must address how to sensitively allow these couples to divorce. Same‐sex couples have a unique set of needs and issues, most clearly demonstrated if children are involved in the marriage. This Note argues for the creation of mediation programs in American jurisdictions with same‐sex marriage, to specifically determine child custody agreements upon divorce.     

SETTLEMENT‐FOCUSED PARENTING PLAN CONSULTATIONS: AN EVALUATIVE MEDIATION ALTERNATIVE TO CHILD CUSTODY EVALUATIONS

The divorce mediation field has recently seen the development of several “hybrid” alternative dispute resolution approaches to child custody disputes. The “settlement‐focused parenting plan consultation” (SFPPC) is a form of evaluative mediation, conducted by a “parenting plan consultant” (PPC), who possesses the combined expertise of a mediator and child custody evaluator. This hybrid model is a more expedient and considerably less expensive approach than a child custody evaluation, but preserves the hallmark mediation principle of self‐determination. The article describes the theory underlying the SFPPC, delineates the role requirements, procedures, and techniques of the parenting plan consultant, and addresses legal and ethical issues.     

RAISING THE BAR: WHY SUPERVISED VISITATION PROVIDERS SHOULD BE REQUIRED TO MEET STANDARDS FOR SERVICE PROVISION

The New York Society for the Prevention of Cruelty to Children (NYSPCC) has provided a supervised visitation program (SVP) for high‐risk families for almost two decades. Parents needing supervised visitation often have histories of domestic violence, child abuse and neglect, mental illness or substance abuse, therefore providers delivering services must be adequately trained and supervised in order to protect the child from further harm during the visitation process. This article describes the need for SVP's, parental issues warranting consideration, the special needs of children in these circumstances, policy recommendations for provider standards, and a certification process to be developed and adopted in New York State.     

PARTNERS IN THE PROCESS: HOW ATTORNEYS PREPARE THEIR CLIENTS FOR CUSTODY EVALUATIONS AND LITIGATION

We surveyed 113 family attorneys regarding what they did to prepare their clients for child custody evaluations and litigation. Findings revealed that participants saw child custody evaluations as useful on a variety of levels and effective in settling cases. In general, participants reported using professionally acceptable procedures, appropriately advocated for their clients, and dealt with complaints in a reasonable fashion. Referrals to mental health professionals in advance of a child custody evaluation were generally made to provide support rather than for evaluation or test preparation. Work product reviews by mental health consultants were infrequent, although such reviews were seen as highly useful by those who used them. Lastly, participants reported that allegations of parental alienation and domestic violence were often used to gain leverage in custody cases. Implications for practice are discussed for both attorneys and evaluators.     

INCORPORATING ATTACHMENT ASSESSMENT INTO CUSTODY EVALUATIONS: THE CASE OF A 2‐YEAR‐OLD AND HER PARENTS

Attachment with parents is central to a child's development. It is well established that the quality of this attachment in early childhood is a strong predictor of developmental and psychological functioning throughout the life span. One of the primary issues in custody evaluations is assessing the quality of the child's attachment to each parent and the parents' capacity to foster security and to consider what this might mean for short‐ and medium‐term decisions about their care. The nature of attachment measures is summarized, and the combined use of three attachment‐caregiving instruments in a custody evaluation is illustrated through the case of a toddler whose parents were engaged in a high‐conflict divorce. The case study demonstrates how, in addition to standard clinical observations, including a set of attachment‐based instruments with a standardized psychological test battery provided information critical to a recommendation for custody and parent visitation.     

SUPERVISED VISITATION: A CALL FOR A SECOND GENERATION OF RESEARCH

With the divorce rate rising and related child visitation disputes becoming an increasingly difficult issue before the courts, supervised visitation programs have proliferated over the last decade. The literature demonstrates that ongoing contact between children and both parents following separation and/or divorce is important for children's socio‐emotional adjustment and positive child/parent relations. However, there is a paucity of literature demonstrating a relationship between supervised visitation programs and child/parent relationship outcomes. Based on the lack of outcome research the authors argue for a second generation of research regarding intended and unintended consequences of supervised visitation. This article reviews and synthesizes the current literature, highlighting strengths, limitations, significant findings and proposes a critical need for evidence‐based research.     

AN EXPLORATORY STUDY OF SUPERVISED ACCESS AND CUSTODY EXCHANGE SERVICES

The detrimental effect of parental conflict in protracted child custody and visitation disputes is well established in the literature. However, little is known about the impact of parental conflict on children when visitation takes place in a protected setting. Part of a larger study that examined the broader issues related to parental and child involvement in a supervised access and custody exchange service, this article specifically explores the influence of parental participation on child well-being. This exploratory effort reveals that children's level of adjustment remained stable over 6 months of participation while visitation returned to court-ordered levels and interparental contact was precluded by staff intervention.     

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.     

RESPONDING TO THE CALL FOR CHILD CUSTODY EVALUATORS TO JUSTIFY THE REASON FOR THEIR PROFESSIONAL EXISTENCE: SOME THOUGHTS ON KELLY AND RAMSEY (2009)

Kelly and Ramsey (2009 ) propose that it is time to examine the costs and benefits courts and participants derive from child custody evaluations. A structure for a research program was suggested. This article endorses this call for such an examination on the system that provides for forensic mental health evaluations for custody disputes. There is a need to examine the costs and benefits of various types of approaches that are emerging, including the comprehensive evaluation and brief, focused evaluations. This article suggests that there is a need for forensic quality control of the work product that is produced by evaluators. Courts are cognizant of the need to encourage settlement between parties, but they also need to be accurate in making judicial determinations that will be in the best interests of children. Quality evaluations are a cornerstone in working toward this goal. Kelly and Ramsey are mindful of the need for evaluations to facilitate settlement, but also to get it right for the court on accurate predictions about children's developmental outcomes.     

A COMPELLING NEED FOR MANDATED USE OF SUPERVISED VISITATION PROGRAMS

Courts are frequently confronted by circumstances that do not justify termination of all contact with a parent, yet present legitimate concerns regarding the physical, emotional, or mental health of the child. Supervised visitation programs afford such parents and their children the opportunity to preserve the emotionally vital parent-child relationship while protecting the child, and sometimes the other parent, from harm. As the number of children deemed to be at risk continues to rise, demand for supervised visitation services steadily exceeds supply. This article proposes that all states should make supervised visitation programs universally available by enacting legislation that provides for their creation, regulation, and funding, together with clearly defined guidelines that mandate participation in supervised visitation programs whenever specific risk factors are present.     

EMPOWERING PARENTS IN CHILD PROTECTION MEDIATION: CHALLENGES AND OPPORTUNITIES

One of the greatest challenges that parents face in child protection mediation (CPM) is to voice their concerns and negotiate on a relatively equal basis with the other mediation participants. This article considers how imbalances of power, limited confidentiality protection, and the personal problems that bring parents into the child protection process can limit a parent's ability to exercise self-determination in mediation and offers guidance for mediators seeking to conduct CPM in a manner that effectively empowers parents to meaningfully and collaboratively participate in mediation.     

MANDATED CUSTODY EVALUATIONS AND THE LIMITS OF JUDICIAL POWER

Kelly and Ramsey are clearly correct that a shift from a “how to” approach to custody evaluations to one that asks the more fundamental question “why” is long overdue. However, in addition to assessing the efficacy of custody evaluations (which Kelly and Ramsey propose), the legal system must also clarify the justification for imposing this extensive—and often expensive—intrusion into the privacy of parents. Three possible justifications for these intrusions are examined in this article: privilege, harm, and voluntariness. Is divorce a privilege, rather than a right, and can qualifications (including intrusive and expensive ones) be attached to requesting that privilege? Are custody evaluations instead justified as a means of avoiding harm to children? If a harm justification is asserted, exactly what harm do evaluations prevent, and how do they accomplish this harm avoidance? Finally, given the high value placed on parental cooperation by the family courts, is it simply too perilous for a parent to oppose a custody evaluation if one is suggested, either by the other parent or by the court? If so, are consents to custody evaluations truly voluntary?     

ALTERNATIVE DISPUTE RESOLUTION FOR HAGUE CONVENTION CHILD CUSTODY DISPUTES*

This note explains that an Alternative Dispute Resolution (ADR) protocol should be adopted as part of the Hague Convention on the Civil Aspects of International Child Abduction to facilitate the amicable resolution of cross‐border child custody cases. It suggests that national ADR models should be used as a guide to improve this treaty. First, this note brings to light the negative effect of cross‐border litigation on children as well as the complexities and the deficiencies of this international treaty. Second, it examines mediation and arbitration systems employed in the United States, Europe, and Australia and how these can be transposed on the international scale. Third, it proposes how the ADR protocol should be drafted and implemented. A sound ADR mechanism would alleviate the unfortunate conditions of children trapped in long and destructive international child custody battles.     

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.     

LEGAL IMPLEMENTATION OF PARENT EDUCATION PROGRAMS FOR DIVORCING AND SEPARATING PARENTS

This article traces the legislation permitting or mandating the use of parent education for divorcing and separating parents in state courts. Explored are State mandatory and discretionary programs, local court rules, voluntary programs, and some of the constitutional issues that are raised.     

ANALYSIS OF MEDIATION AGREEMENTS OF FAMILIES REPORTING SPECIFIC TYPES OF INTIMATE PARTNER ABUSE

The purpose of this study was to carefully measure Intimate Partner Abuse (IPA) behaviors among a large ( n  = 864 couples) sample of pairs of husbands and wives who were mandated to attend divorce mediation and then to: categorize the behaviors into theoretically-driven types of IPA, determine the number of cases screened out of mediation for any reason, and investigate whether measured outcomes of mediation (primary physical and legal custody) were related to IPA. Results indicated that rarely was IPA not reported—the most frequently reported IPA behavior was psychological abuse (98% of wives; 97% of husbands), followed by physical abuse (58% of wives; 54% of husbands), escalated physical abuse (62% of wives; 50% of husbands), and sexual intimidation, coercion and rape (56% of wives; 29% of husbands). Rarely were couples reporting IPA screened out of mediation (5%), and rarely were supervised parenting time or restrictions on contact between parents included in mediated agreements made by couples reporting IPA (6.5%). The overall level of IPA was unrelated to the specific terms of mediated agreements; however, by far the most frequent type of mediated agreement the couples' negotiated in mediation was for primary physical custody to go to the wife and for the husband and wife to have joint legal custody (59% of cases). Analysis of the implications of these findings and policy recommendations are included.     

MEDIATIVE EVALUATIONS: THE PROS AND PERILS OF BLENDING ROLES

Child custody evaluators with experience in mediation may be tempted to use mediation skills and strategies in their evaluation processes. This article explores the benefits and risks of blending mediation with evaluation, comparing the perspectives of professionals and clients.