Disputed child custody: strategies and issues in mediation

Disputed child custody is a significant life stressor for both adults and children. Recent efforts have been made to develop a model for family mediation and subsequent clinical strategies that can attempt to address the stressors involved in divorce and perhaps resolve, through mediation, the posttrauma stress experienced by both spouses and children. Reviewed is the literature on the impact of separation and divorce on families and the use of family mediation to resolve disputes. It further addresses psychologic factors involved in the mediation process and the possible effects of mediation on divorce. An established family mediation model for treatment is presented in detail, as are clinical issues often addressed in the family mediation process. Issues and import for clinical application and research are offered.     

" 'These Boots Are Made for Walking' ": A Reply

Erik Craft's comment on our 2000 article takes up a minor point,the impact of no-fault divorce on the gender of the spouse filingfor divorce. In the original article, we related the genderof the filing to rent exploitation during marriage, rent appropriationthrough divorce, and particularly child custody. We tested thehypotheses we generated using a sample of more than 46,000 divorcedecrees from the only four states collecting all the informationwe needed. The type of divorce ground was only a control variable,and not a strong one. We argue that Craft's comment misses ouressential point.     

Faster and as Satisfying: An Evaluation of Alaska's Early Resolution Triage Program

The Alaska Court Early Resolution Program (ERP) addresses many issues – self‐representation in divorce and custody cases, triaging to determine the appropriate resolution approach, the importance of early intervention and the desire to use a simplified process and a problem‐solving approach. This article reports on an evaluation of the Anchorage ERP. It found different outcomes for ERP cases that settled than comparable cases that proceeded on the regular trial process track with respect to the following outcomes:

• time to disposition,
• number of staff processing steps and associated completion time, and
• number of motions to modify filed within two years of the disposition.

     

The Place for Custody Evaluations in Family Peacemaking

Custody evaluations can serve the dual purpose of providing neutral, objective information to the court while also contributing to the possibility of earlier settlement, which coincides with the therapeutic jurisprudence goal of more positive outcomes for children and families. Research suggests that most cases settle after custody evaluations. However, most of the literature is focused on the use of custody evaluations for litigation. Evaluators, attorneys, and mental health consultants can influence parents to focus more on children's needs and less on their conflict as they go through the evaluation process. This article urges family courts to develop processes and require professionals to learn skills needed for an interdisciplinary process to utilize evaluations in peacemaking.

Key Points for the Family Court Community:
• All custody evaluation processes should aim to reduce and/or shorten children's exposure to parental conflict.
• Evaluators, attorneys, and mental health professional consultants should use the evaluation process to influence parents to be more aware of their children's needs and less invested in their adversarial positions.
• Evaluators should learn to write and orally present information and state opinions with consideration of the parents themselves as consumers of the custody evaluation as well as the court.
• Attorneys and mental health professional consultants should help clients review the report, process their emotional reactions, and consider their options for settlement versus litigation in terms of emotional and financial costs to the family.
• Court processes should be developed to contain the time and cost of custody evaluations and provide dispute resolution after custody evaluations.

     

Does Level of Intimate Partner Violence and Abuse Predict the Content of Family Mediation Agreements?

This study investigated whether reported levels of intimate partner violence (IPV) and/or abuse (IPV/A) victimization are related to reaching agreement and to the content of mediation agreements of parties seeking to resolve family‐ and child‐related issues. Whether or not parties reached agreement was analyzed for 105 cases at a law school mediation clinic. Agreement content was coded for the 71 cases that reached agreement. Levels of IPV and IPV/A were determined separately for males and females, using a standardized measure. Regression models were utilized to examine reports of IPV or IPV/A as predictors. Results indicated that mediation may help families with a reported history of IPV and IPV/A address a variety of concerns; levels of partner violence/abuse predicted numerous issues in mediation agreements, including arrangements regarding legal custody, parenting time, holidays, child exchanges, interparental communication, safety restrictions, counseling referrals, child support, financial arrangements, and other miscellaneous topics (e.g., relocation). However, some findings were consistent with concerns raised about the use of mediation with parties reporting IPV and IPV/A; for example, increasing levels of male‐perpetrated IPV/A predicted increased likelihood of making an agreement to share legal custody. Further research is needed to resolve the longstanding debate of whether divorce mediation is an effective and safe process for parties demonstrating IPV/A.

Key Points for the Family Court Community
• This study adds to the debate of whether divorce mediation is an effective and safe process for parties demonstrating IPV/A.
• It examines whether reported levels of IPV and IPV/A victimization are related to reaching agreement and to the content of mediation agreements of parties seeking to resolve family‐ and child‐related issues.
• Results provide some evidence that mediation may help families with a reported history of IPV and IPV/A address a variety of concerns.
• However, some findings are consistent with concerns raised about the use of mediation with parties reporting IPV and IPV/A.
• Findings have implications for the practice of family mediation with parties reporting a history of IPV or IPV/A.

     

SKEPTICISM BORDERING ON DISTRUST: FAMILY LAW IN THE HOLLYWOOD CINEMA

This article critiques Hollywood films from the last last 20–30 years that relate to family law. More specifically, this article considers films involving marriage, divorce, child custody, and adoption and focuses on the portrayal of law in those films. While the films are not tightly connected to one another and surely do not share a unified theme, the films do share a surprising skepticism bordering on distrust regarding law, legal procedures, and legal institutions. Hollywood appears to have picked up a general sentiment that family should be a private, intimate sanctuary and is better off without state intrusion through law. The films incorporate this sentiment and also reinforce it by teaching viewers to be leery of law in family matters. Key Points for the Family Court Community:

• 1 Recent Hollywood films include not only abundant portrayals of family life but also numerous examples of family law.
• 2 As a result, these Hollywood films have the potential to educate viewers about family law and to prompt certain normative attitudes about family law.
• 3 In general, Hollywood films invite viewers to be skeptical and even disdainful of family law.

     

BRINGING CHILDREN TO THE MEDIATION TABLE:

With the rise of divorce mediation as an effective means of resolving divorce and custody disputes, a question that arises is whether a child should actively participate in the mediation process to make his or her voice heard. This article discusses the costs and benefits of involvement, focusing on four specific approaches to the inclusion of children in divorce mediation. This article comes to the conclusion that the integration of children in mediation ought to be considered on a case-by-case basis, and further proposes that a child be included in divorce mediation in circumstances where the child's input is needed to help parents resolve an issue of dispute that concerns their child's interests.     

Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and Their Children

Parents without immigration status in the United States regularly face the threat of deportation and separation from their children. When an undocumented parent is brought to the attention of law enforcement through the child welfare system, they also face the potential of the loss of legal custodial rights to their children. The child welfare system and immigration enforcement mechanisms operate independent of one another with little regard for how actions in one can impact a parent's legal rights in the other, often permanently separating children from their parents. This article examines the particular issue of undocumented parents who are charged with the failure to protect their children from witnessing or otherwise experiencing abuse committed by a third party. It explores how such a charge, whether founded or unfounded, can result in loss of eligibility for immigration relief to which the undocumented parent would otherwise be entitled, as well as deportation of the parent and permanent separation of parent and child. These issues are situated within the larger context of the normative guideposts of both family and immigration law, namely, the best interests of the child and family unity. It identifies issues for further academic inquiry as well as tips for practitioners who may represent undocumented parents in either the family or immigration systems.

Key Points for the Family Court Community:
• Learn about the potential consequences under family law and immigration law when an undocumented parent's child is abused by a third party
• Gain strategies for planning with undocumented parents to avoid the loss of the custody of their children in the event of a sudden deportation
• Be able to identify and address particular concerns for clients who are undocumented victims of domestic violence

     

Helping Families by Maintaining a Strong Well‐Funded Family Court that Encourages Consensual Peacemaking: A Judicial Perspective

This article explores alternatives for the court process that promote a child‐centered approach to resolution of family law issues including a summary of procedures used in Los Angeles County to assist families. The article also explores alternatives to the traditional custody litigation model.

Key Points for the Family Court Community:
• Evaluations and trials are not the only tools available in family law.
• Structured court ordered counseling can provide a meaningful intervention and reduce family conflict.
• Alternative forms of mediation can help families address the “need to be heard” and retain personal autonomy in decision making.
• The court system should help educate families about how to resolve conflict in a safe, effective, and meaningful way.

     

PROTECTING VICTIMS OF DOMESTIC VIOLENCE AND THEIR CHILDREN AFTER DIVORCE

This article discusses the issue of domestic violence in the postdivorce context and how abused women who have children with their abusers are at a particular high risk of becoming victims of this phenomenon. It discusses recent state legislation that has been enacted to deal with the problems of domestic abuse after divorce. More specifically, this article looks at the American Law Institute's proposed model statute on child custody and visitation and how it addresses the issue of domestic violence both during and after divorce. This article will also explore potential flaws of the American Law Institute's model as well as some ideas for further development in this area .     

The Role of Western Religious Values in Peacemaking for Divorcing Families

Peace (wholeness and integrity) is to be sought as the highest goal in the divorce process, affecting not only the divorcing couple but their family and community as well. The value of “community” found in the three major Western religious traditions suggests that more than just the immediate family should be involved in crafting divorce settlements and that the involvement of clergy may aid in the divorce process, especially in providing rich religious metaphors and exempla to promote peaceful negotiations. Other religious values such as “humanity in the divine image,” “love,” and “the fullness of time” can be useful in working with the divorcing couple to allow their stories to be told, provide time to sort out their complex emotions, and help reduce the impulse to see the other solely as an enemy to be eliminated in battle. “Sin and atonement” can serve an important role in restorative justice, while “the delayed arrival of the divine kingdom” provides a reasonable way to assess what determines success, both for the divorcing couple and for divorce professionals.

Key Points for the Family Court Community:
• Religious values found in Judaism, Christianity, and Islam can be consciously utilized to help divorcing couples separate more peacefully.
• Providing opportunities for each spouse to be fully heard and seen is a crucial component in helping to bring more peace into the divorce process.

     

High Conflict Divorce,Violence, and Abuse: Implications for Custody and Visitation Decisions

Today, judges are faced with the daunting task of determining the best interests of the child and making appropriate custody awards to that end. The best interests of children becomes a critical question when domestic violence is involved; yet, determining what constitutes domestic violence is often debated. Research is often divided on what constitutes domestic violence. One body of research focuses on conflict, another focuses on domestic violence. What the first group identifies as intense emotional distress and disagreement, the other identifies as abuse. Judges making custody determinations in such cases are faced with the difficult challenge of distinguishing between a divorce with “high conflict” and a domestic violence case with ongoing abuse. This article will summarize the legal, philosophical, and historical understandings of the “high conflict” family and its potential impact on children. It will also provide practical judicial guidelines for making the important distinction between high conflict and domestic violence and subsequently crafting appropriate and safe child custody awards.     

Gender in the Context of Same‐Sex Divorce and Relationship Dissolution

This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same‐sex couples upon divorce or other relationship dissolution. When same‐sex couples marry, the legal system and society at large may project conceptions of gender onto same‐sex couples, often in a manner that conflicts with couples' intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same‐sex relationships.     

FROM INFANTS TO ADOLESCENTS A Developmental Approach to Parenting Plans

Divorce and the resultant process of child custody decision making impact heavily on the lives of children. Increasingly, parents and professionals have realized the importance of encouraging shared responsibility in child rearing following separation and divorce. This shared responsibility must continue throughout a child's life and into young adulthood. This article introduces a comprehensive child-and family-focused model of decision making. The goal of this model is to assist professionals in their work with parents and to help parents formulate parenting plans that reflect the ever-changing developmental needs of each child and that specify how each parent will meet the particular needs of each child in the family. Through the use of educational parenting seminars and the completion of a Needs Assessment for each child, flexible parenting plans are created and positive co-parenting skills develop.     

RELOCATION,RESEARCH, AND FORENSIC EVALUATION,PART I: EFFECTS OF RESIDENTIAL MOBILITY ON CHILDREN OF DIVORCE1

The issue of relocation presents courts and child custody evaluators with dilemmas on the issue of allowing a child to move with a parent to a new community and how to craft long‐distance parenting plans if relocation is allowed. The issue of the potential effects of residential moves on children of divorce has focused on the importance of the child–nonresidential parent relationship. The research literature on the effects of residential moves, or relocation, on children of divorce has not been fully integrated into the examination of this issue and its relevance for the child custody evaluation. The literature shows residential mobility is a general risk factor for children of divorce and this is a starting point for the custody evaluation, but it is not a basis for bias or a presumption against relocation. Predicting a child's adjustment to relocating or not relocating requires a careful and contextual investigation of the child and family circumstances. The research literature is a helpful frame of reference.     

A study of families in high-conflict custody disputes: effects of psychiatric evaluation

Each year approximately 2.5 million people divorce, subjecting more than 1 million children to the losses of familial breakup. Hostility in families can be greatly exacerbated by parents' repeated failures to negotiate an altered lifestyle for the family which provides for the children's best interests. Interventions with highly conflictual parents and their children must necessarily address the interface between the mental health and legal professions. How families experience this process must be carefully studied in order to create new strategies for change, not only within the families, but also to facilitate the legal system's cooperation with mental health professionals. To date, little research has been conducted which assesses the efficacy of methods used by mental health professionals to intervene in contested child custody cases. This paper describes a program at the Isaac Ray Center, Inc., designed to help parents settle their custody disputes out of court. The article presents findings based on an 18-month follow-up questionnaire and court records for 45 parents. Data concerning custody settlement, relitigation, and parents' satisfaction with the evaluation process, their attorneys, and the custody outcome are presented and discussed.     

The impact of parental homosexuality in child custody cases: a review of the literature

As a result of the relatively high rate of divorce in this country and the increasing awareness that many parents (an estimated 1.5 million) are homosexual, the courts, as well as divorce mediators, have become actively involved in child custody placement decisions involving homosexual parents. While custody decisions have tended to reflect stereotyped beliefs or fears concerning the detrimental effects of homosexual parenting practices on child development, a review of the research consistently fails to document any evidence substantiating these fears. A number of specific custody issues are discussed as well as social factors relevant to lesbian motherhood. In conclusion, several authors call for increased awareness of the facts of homosexual parenting by lawyers, judges, and other professionals involved in homosexual parent-child custody cases.     

Adaptive and Maladaptive Gatekeeping Behaviors and Attitudes: Implications for Child Outcomes After Separation and Divorce

Gatekeeping has been used as a theory and a measure to describe and assess family dynamics within the context of separation and divorce. In this article, we explore adaptive and maladaptive gatekeeping behaviors and attitudes that can affect the other parent's relationship with the child. Implications are presented for connecting adaptive and maladaptive gatekeeping responses to child outcomes of safety, well‐being, and positive parent–child relationships following separation and divorce. We build on the recent attention to gatekeeping as a potential framework within the child custody context.     

INTERVIEWING CHILDREN IN CUSTODY EVALUATIONS

Child interviews are a central part of custody evaluations that affect many families, and ways to maximize their accuracy and usefulness are discussed. Empirical research on children of divorce is emphasized in a conceptual strategy for collecting interview data. Information about child interviews from the custody evaluation literature is reviewed, as are relevant research findings about the accuracy of children's statements. Implications for practice are proposed that integrate research findings and recommendations from the literature.     

Divorce, Custody, and Spousal Violence: A Random Sample of Circuit Court Docket Records

The fastest growing marital status category in America is divorced, with the number of divorced individuals quadrupling between 1970 and 1996. The majority of children in divorced families live with a single parent and often lose contact with the noncustodial parent. A recent review of the literature suggests that many noncustodial fathers fail to keep contact with their children and become delinquent in child support payments because of their dissatisfaction with the custody arrangement. However, there has been little examination of how custody arrangements are typically determined or settled. In addition, divorces that involve spousal violence bring further complications to child custody, visitation, and child support decisions. This study included a 20% random sample of court records for all divorces settled in one county judicial circuit court during 1998. The purpose of this study was to examine characteristics of divorcing adults as well as characteristics of child custody arrangements, visitation, and child support decisions. Contrary to popular belief, findings from this study indicate that divorce actions were almost always settled through agreement of the divorcing parties rather than by adjudication. About 38% of the couples had children in common and between 78 and 92% of cases were settled through agreement, which suggests that fathers are in fact agreeing to the custody arrangement, rather than being forced into it. About one in five records overall noted spousal violence, and there was no significant difference in settlement methods for couples with or without spousal violence. Cases with children and spousal violence were significantly more likely to have also mentioned substance use and postdecree activity. This study suggests a need for more focused attention on divorce cases with spousal violence to reduce postdecree court involvement and safety of children and adult victims, as well as further study into what causes noncustodial parents to lose contact with their children.