Expressed‐Interest Legal Representation for Children in Substitute Care: Evaluation of the Impact of Representation on Children's Permanency Outcomes

Based on a combination of administrative data; juvenile court record review; and informed‐participant interviews of juvenile court judges, attorneys, and service providers, the current study examines the impact of the Foster Children's Project (FCP). FCP is a program that provides professional legal representation to children in substitute care. Legal representation by FCP attorneys is found to increase the rate of children's exit to adoption, leading to a higher overall rate of exit to permanence. The rate of exit to reunification is not, however, found to be affected by FCP representation. Implications for juvenile court policy and practice are discussed.

Key Points for the Family Court Community:
• The study is the first of its kind to examine the impact of client‐directed representation in cases of children in foster care through examination of Palm Beach County's Foster Children's Project (FCP), which provides professional legal representation to those in state care.
• FCP representation was found to increase the rate of children's exit to adoption, leading to a higher overall rate of exit to permanence. The rate of exit to reunification, however, remained stable.
• Research findings are based on administrative data; juvenile court record review; and interviews of juvenile court judges, attorneys, and service providers.

     

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.

     

Families in Circle Process: Restorative Justice in Family Law

This article explores the use of “circle process”—a form of restorative justice—in family law and places this effort within a larger movement within the law toward law as a healing profession, or the “comprehensive law movement.” It explores the features and underpinnings of circle process and its relationship to original forms of dispute resolution such as those used in African‐style mediation and indigenous people's dispute resolution in North America. Values expressed by these forms of dispute resolution are argued to be particularly relevant in family law. Finally, it focuses on an innovative and exciting court‐sponsored program begun in Chicago in 2008, using circle process with families in conflict, in the Cook County Parentage and Child Support Court. This program's results suggest potential benefits and cautions of using circle process in family law.

Key Points for the Family Court Community:
• Restorative justice, in particular, circle process, can be used to resolve family law cases.
• Circle process widens the group of participants in alternative dispute resolution of family law matters.
• Circle process brings more voices to the table, namely, extended family, friends, and supporters, thus enhancing the group's decisionmaking.
• Judges will want to be sure the families in question are appropriate for circle process before referring them to this method of resolving disputes.
• Circle processes can result in improved communication and relations among families in conflict.
• Circle process reflects the values of “original dispute resolution,” which often in turn reflects ubuntu, the idea that all humankind is interconnected.
• Circle process is part of a greater movement towards law as a healing profession/the comprehensive law movement, which includes therapeutic jurisprudence.

     

What the #@!* are they Fighting About?!?: Reflections on Fairness,Identity, Social Capital,and Peacemaking in Family Conflicts

Peacemaking is particularly challenging in family conflicts. Deeply held feelings about identity, fair treatment, moral issues, and protecting social capital often cause people in conflict to make self‐defeating decisions. There are, however, techniques that enable mediators, Collaborative Practice professionals, and other peacemakers to overcome the settlement barriers created by these strongly held views. These techniques include those pioneered by psychotherapists using the Internal Family Systems model, which enables parties to see that their strongly held views comprise only part of the constellation of feelings that they have about the conflict.

Key Points for the Family Court Community:
• Parents who feel that their role as father or mother is in danger often find it difficult to focus on the children's best interests.
• The “rule of reciprocity” causes people who feel wronged to exact even harsher punishment on those who harmed them.
• The concept of “social capital” explains why people care so passionately about whether they are treated fairly and about their reputation for fairness.
• The Internal Family Systems model helps peacemakers to understand how to work with the parties’ ambivalence about settlement versus courtroom vindication.

     

Parenting Plans for Special Needs Children: Applying a Risk‐Assessment Model

Family courts are seeing an increasing number of separating or divorced families who have a special needs child. These cases present complex challenges for family law professionals charged with crafting parenting plans based on best interests standards. For many of these children, the typical developmentally based custodial arrangements may not be suitable, given the child's specific symptoms and treatment needs. We present a model for understanding how the general and specific needs of these children, as well as the demands on parents, can be assessed and understood in the context of divorce. This includes an analysis of risk and protective factors that inform timeshare and custodial recommendations and determinations. The risk assessment model is then applied to three of the most commonly occurring childhood neurodevelopmental and psychiatric disorders likely to be encountered in family court, namely, attention deficit/hyperactivity disorder, depressive disorders, and autistic spectrum disorders.

Key Points for the Family Court Community
• There has been a dramatic rise in the population of children with neurodevelopmental, psychiatric, and medical syndromes whose parents are disputing custody in the family courts.
• Family law professionals of all disciplines should develop a fundamental knowledge base about the most commonly seen special needs children in family court, such as those with neurodevelopmental conditions like autistic spectrum disorder, attention deficit/hyperactivity disorder, and severe depressive disorders (especially with teenagers), which may involve suicidal or self‐harming behaviors.
• Commonly recommended parenting plans may be inappropriate for many special needs children, as some function significantly below their chronological age and pose extreme behavioral challenges.
• A systematic analysis of risk and protective factors should inform timeshare arrangements and determinations with this varied population, including the safety of the child and severity of the disorder, parental commitment and availability to pursue medical, educational, and therapeutic services, the parental attunement and insightful about the problem, and the differential parenting skills of each parent.

     

Reforming Relocation Law: An Evidence‐Based Approach

In recent years, there has been much discussion within international fora about the need for a greater consensus on how to approach relocation cases. Empirical research on the lived experience of parents and children who have been through relocation disputes has an important role to play in providing an evidence base for decisions on policy. In this article, we summarize the findings of a 5‐year prospective longitudinal study of relocation disputes in Australia and make recommendations in the light of this and other research evidence concerning a new approach to relocation law. We argue that there should be no presumptions. Nonetheless there is an appropriate place for legislative or appellate guidance on how to approach these disputes. “Good faith” should be irrelevant to decision making, and children should not be placed in the center of the conflict. The adjudication of relocation disputes should be on the basis of asking three questions: First, how close is the relationship between the nonresident parent and the child and how important is that relationship developmentally to the child? Second, if the relocation is to be permitted, how viable are the proposals for contact with the nonresident parent? Third, if the relationship between the child and the nonresident parent is developmentally important to the child and is likely to be diminished if the move is allowed, then (a) what are the viable alternatives to the parents living a long distance apart? and (b) is a move with the primary caregiver the least detrimental alternative?

Key Points for the Family Court Community
• Describes the findings of empirical research on relocation disputes in Australia on the lived experience of children and families postrelocation disputes.
• Reviews various features of relocation law and proposals for reform in the light of this research evidence.
• Proposes an approach to deciding relocation cases based upon three essential questions.

     

Dignity as (Self‐)Determination: Hopi Sovereignty in the Face of US Dispossessions

In 2013, the Arizona Snowbowl Ski Resort began spraying artificial snow made from reclaimed wastewater on Arizona's highest peak, a place the Hopi people call Nuvatukya'ovi, “Snow‐on‐top‐of‐it.” As one of the Hopis’ most sacred places, the home of the katsinam and the southwestern boundary marker of their aboriginal territory, the Hopi have fought for decades to stop development of the ski resort, which today sits on US Forest Service land. Viewing the history of this dispute through the lens of Atuahene's notion of a “dignity taking,” this article argues that despite never having been relocated, the indignities that the Hopi have suffered by US dispossessions of much of their aboriginal territory are the product of a series of bureaucratic sleights of hand that only bear the mark of legality if one ignores history and denies the enduring right to self‐determination and sovereignty that Hopi have continuously claimed with regard to the totality of their aboriginal land.

Yuuyahiwa,

Ayamo Nuvatukya'ove'e.

Oo'oomawutu,

angqw puma naayuwasinaya,

pewi'i.

They are preparing themselves [for a journey],

Over there at the snow‐capped mountains [San Francisco Peaks].

The clouds,

From there, they are putting on their endowments [of rain power],

To come here.

A Hopi katsinam song recalled by Emory Sekaquaptewa (from Sekaquaptewa and Washburn, 2004, 468)

     

The Parenting Coordinator as Peacemaker and Peacebuilder

Parenting coordinators serve as case managers in high‐conflict families with the goal of protecting the children from parental conflict. Parenting coordinators are peacemakers and peacebuilders who identify and help set up structures in the family to support peace between the parents. The family court should promote and develop equipoise in litigants and professionals. Because parents who continue in conflict postdecree often have difficulty empathizing with their co‐parents and with their children, they might benefit from meditation training to increase mindfulness, empathy, and compassion. Self‐compassion training could also increase well‐being and more effective co‐parenting and aid in building peace in the family.

Key Points for the Family Court Community:
• Parenting coordination is a child‐focused intervention with high‐conflict parents that can help protect children from their parents' conflict.
• Parenting coordinators are peacemakers who resolve disputes between the parents and facilitate negotiation and communication between them and help them make decisions.
• Parenting coordinators are also peacebuilders who help identify and build structures and processes in the family system to strengthen interparental peace.
• Equipoise can be developed in litigants and professionals through mindfulness and compassion training.
• Family court judges can work with parenting coordinators in a team approach, in a manner similar to what occurs in problem‐solving courts, to benefit the families and the judicial system.

     

A fundamental attribution error? Rethinking cognitive distortions†

The notion of ‘cognitive distortion’ has become enshrined in the offender treatment literature over the last 20 years, yet the concept still suffers from a lack of definitional clarity. In particular, the umbrella term is often used to refer to offence‐supportive attitudes, cognitive processing during an offence sequence, as well as post‐hoc neutralisations or excuses for offending. Of these very different processes, the last one might be the most popular and problematic. Treatment programmes for offenders often aim to eliminate excuse‐making as a primary aim, and decision‐makers place great weight on the degree to which an offender “takes responsibility” for his or her offending. Yet, the relationship between these after‐the‐fact explanations and future crime is not at all clear. Indeed, the designation of post hoc excuses as criminogenic may itself be an example of fallacious thinking. After all, outside of the criminal context, post hoc excuse‐making is widely viewed as normal, healthy, and socially rewarded behaviour. We argue that the open exploration of contextual risk factors leading to offending can help in the identification of criminogenic factors as well as strengthen the therapeutic experience. Rather than insist that offenders take “responsibility” for the past, we suggest that efforts should focus on helping them take responsibility for the future, shifting the therapeutic focus from post hoc excuses to offence‐supportive attitudes and underlying cognitive schemas that are empirically linked to re‐offending.     

Sufren Los Niños: Exploring the Impact of Unauthorized Immigration Status on Children's Well‐Being

The present study examines the effect of unauthorized immigration status on child well‐being at a time of elevated immigration rates, economic decline, and unprecedented local lawmaking related to immigration. Immigrant families today are likely to differ from those of the past in that they are more likely to be from Latin America or the Caribbean and include unprecedented numbers of unauthorized immigrants. In addition, they are settling in destinations that have not historically had immigrant populations. The present study draws on interviews with 40 families from an emerging immigrant destination in north central Indiana to help illuminate the ways in which unauthorized immigration status influences child well‐being. Results illustrate that unauthorized status extends beyond the individual to families and that mixed‐status family situations create unique challenges for these families. More specifically, these results show the ways in which unauthorized immigrant status may impact family stress and uncertainty, health outcomes, and educational attainment and may result in increased social isolation for children in immigrant families.

Key Points for the Family Court Community:
• Unauthorized immigration status is typically defined as an individual characteristics, however there are likely to be large numbers of families with authorized and unauthorized status family members. These “mixed‐status families” create unique challenges for families and children.
• This article informs practitioners about the ways in which recent state policies targeting unauthorized immigrants, in addition to existing federal policy, create barriers and negatively impact child and family well‐being for Latino immigrants, regardless individual immigration status.
• Unauthorized immigration status may impact family stress and uncertainty, health outcomes, educational attainment, and may result in increased social isolation for children in immigrant families.

     

The Resource Center for Separating and Divorcing Families: Interdisciplinary Perspectives on A Collaborative and Child‐Focused Approach to Alternative Dispute Resolution

The Resource Center for Separating and Divorcing Families (RCSDF) is a teaching model for providing interdisciplinary services to separating and divorcing families. The model was developed by the Honoring Families Initiative at the Institute for the Advancement of the American Legal System at the University of Denver. Services are provided by graduate and law students at the University of Denver, working side‐by‐side with a supervising licensed attorney, psychologist, and social worker. The experiential and interdisciplinary model of teaching and providing direct client services is the first of its kind in the United States. RCSDF students and staff seek to empower parents to make positive decisions about their family's future in a supportive and educational environment.

Key Points for the Family Court Community
• The current system of preparing graduate and law students for careers in family law is in need of improvement. This article provides information for educators and the family law community about the impact of interdisciplinary and experiential learning for students.
• Parents going through the transition of separation or divorce experience psychological and financial stressors that can create serious behavioral and adjustment issues for their children. The RCSDF works in a holistic manner with parents and children to minimize the levels of stress and anxiety during the transition.

     

The Chat Room Moderator: Creating a Duty for Parents to Control Their Cyberbully

The advent of new technologies allowing people to communicate via the Internet has opened many windows to social interaction. At the same time, it has shifted the focus of child harassment from the playground to the computer. Instead of face‐to‐face bullying, children are now being bullied on the Internet, in a phenomenon known as “cyberbullying.” Cyberbullying is widespread, affecting generally twenty‐five percent of the child population in the United States. It is also more dangerous, as a child can be bullied at any time in the supposed comfort of his/her own home. To combat this behavior, many states have passed measures to ban or criminalize cyberbullying in school‐related settings. Nevertheless, children and adolescents continue to cyberbully their peers. Furthermore, most of these statutes do not address cyberbullying that occurs outside school or from a child's own home. Thus, this Note proposes that cyberbullying can be better combated by placing responsibility on parents to reasonably control their children in cases of cyberbullying. Based on the recently enacted ‘Cyber‐safety Act” from the Canadian Province of Nova Scotia and Restatement of Torts § 316, this Note proposes (1) placing tort responsibility on parents who know that their child is a cyberbully and do nothing about it and (2) allowing parents to avoid liability when their child truly cannot be controlled.

Key Points for the Family Court Community
• Cyberbullying is a major problem that must be addressed beyond the schoolyard.
• The law may provide recourse for the parents of a cyberbullying victim and can hold the parents of a cyberbully responsible.
• The Nova Scotia Cyber‐safety Act is a good model for holding parents liable for their child's acts because it balances the desire to end cyberbullying and the understanding that some minors are uncontrollable.

     

From Helping Court to Community‐Based Services: The 30‐Year Evolution of Australia's Family Relationship Centres

As a centrepiece of Australia's 2006 family law reforms, the community‐based Family Relationship Centres (FRCs) represented a major development in the Government's commitment to incorporate family relationship services into its family law system. This paper sees FRCs as a logical development of the original conceptualising the Family Court of Australia as a “helping court”. The paper suggests that the aspiration to create a helping court was partially achieved in 1976 via the creation of an in‐house family court counselling service, which was primarily focused not on law and legal principles, but on supporting the ways in which family members were managing the task of redefining relationships. While generally valued by judges and others, this service nonetheless found itself in tension with the Family Court's continued primary commitment to legally informed and adversarially driven negotiation and decision‐making processes. Since 2006, the creation of FRCs has spearheaded a family law system that provides relationship‐focused interventions away from the courts as the default option for most parenting disputes. Consistent with this aim, there is evidence of a diminished percentage of cases now requiring judicial intervention. The 2006 legislation also provides for courts to conduct “less adversarial trials.” Paradoxically, this has occurred alongside unequivocal evidence from the Australian Institute of Family Studies’ evaluation data that judicial officers are dealing mainly with families displaying seriously dysfunctional attitudes and behaviours. The legal challenge in dealing with these cases is for courts to provide child focused, fair and non‐destructive internal processes. In addition, however, it is increasingly clear that to support and help facilitate their decisions, courts also need good working relationships with FRCs and other community based services. FRCs and the 2006 reforms offer the possibility of moving beyond the ideal of a “helping court” to the broader concept of helping family law system.     

Parental Involvement in Juvenile Sex Offender Treatment: Requiring a Role as Informed Supervisor

Sex offenses, particularly those against children, have always been viewed negatively in society. A large portion of these offenses are committed by children against children. Most state legislatures focus on punitive measures when dealing with juvenile sex offenses, yet few place treatment on equal ground. Treatment has been shown to be effective in reducing the rate of recidivism of juvenile sex offenders. Juvenile sex offenders that participate in treatment have shown lower recidivism rates than adult offenders or untreated juvenile sex offenders. This Note advocates that states adopt legislation based on a successful statute in Colorado that creates a sex offender management board consisting of a multidisciplinary treatment team for juvenile sex offenders' treatment while requiring parental involvement in treatment as “informed supervisors” when the team deems it appropriate.

Key Points for the Family Court Community:
• Sex offender treatment on juveniles has been successful in reducing recidivism, as juveniles are more receptive to treatment than adults.
• Supervision and treatment of juvenile sex offenders would be more effective if parents or guardians are involved in the juvenile's sex offender treatment.
• States should adopt legislation based on the Colorado model that creates a sex offender management board and multidisciplinary team to supervise the treatment of juvenile sex offenders and requires appropriate parental involvement in the treatment as “informed supervisors”.

     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

Do Not Make their Trauma Your Trauma: Coping with Burnout as a Family Law Attorney

In the field of family law, attorneys frequently expose themselves to highly emotional and traumatized clients. Litigation is by nature a high‐stress occupation, demanding a high level of intellectual and emotional engagement from the contesting lawyers. Adding the burden of inherently distressing content to litigation can impair a lawyer's functioning. The effects are often referred to as “secondary trauma.” This Note proposes that state bar associations should take a more active role in providing mental health support to prevent burnout in family law attorneys by (1) offering voluntary classes to educate attorneys about the dangers of, and ways to cope with, the burnout that comes with working with traumatized clients in family law and (2) organizing support groups among local family law communities.

Key Points for the Family Court Community:
• Claims against family law practitioners account for the third highest percentage of all malpractice claims against lawyers.
• Burnout is a serious problem for family law attorneys.
• Programs sponsored by state bar associations are available and need to be expanded.
• The American Bar Association's Model Rules require that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.
• The unique nature of family law, centered on relationships and emotions, puts family law attorneys at a higher risk for experiencing the effects of secondary trauma than other areas of law.
• Lawyers at risk for secondary trauma can avoid its effects by educating themselves about such effects.

     

Some Themes Arising from the Last Edition of Family Court Review

In the last edition of the FRC, there are a number of articles which highlight ever‐present themes in the many dispute resolution industries. These themes are: The cyclical nature of family law and DR reform to and fro “faster, cheaper, less formal and more accessible”; Access barriers for the poor and middle class; Access barriers due to geography, distance, and cultural differences; Blossoming of a range of “abbreviated” (short and inexpensive) DR services; The essential, yet neglected, task of systematic diagnosis of possible causes of conflict, and of a possible range of helpful interventions: DR practitioners should aim to “at least do no harm”; If a DR practitioner exhibits care, and core communication skills, how much do different processes matter? The Hawthorne effect—all pilot projects tend to succeed?; There is a constant flow of stories, systematic and statistical knowledge in DR industries. Who is listening and translating this flow of information between the various DR silos and to the public?

Key Points for the Family Court Community:
• The repetitive and predictable cycles of family law reform.
• Access to DR services restricted by finances, geography and cultural differences.
• The old saying “at least do no harm” should find a prominent place in all family DR services and training.
• The Hawthorne effect—all pilot and new projects seem to “succeed” for awhile. What follows?
• In the many family DR silos, there are “truths” embodied in stories, systems and statistics. Who can translate helpfully from one silo to another?

     

Presumptions,Burdens, and Best Interests in Relocation Law

The pure “best interests” approach to relocation law is a failure. It is unpredictable and expensive, increasing conflict and discouraging settlement. The “fundamental questions” proposed by Parkinson and Cashmore in their article will not reform the law. Real reform will require the use of presumptions or burdens to guide best interests. “Presumptions” are not “rules,” but only starting points. No simple presumption “for” or “against” all relocations can be justified, but there are large categories of cases that do warrant presumptions: interim moves, unilateral relocations, shared care, and predominant primary caregivers. The first three involve presumptions against relocation, while the last—the largest category—warrants a presumption that relocation is in the best interests of the child, unless the contrary is proved. There will remain a small minority of in‐between cases where none of these presumptions will operate, recognizing the limits of our general knowledge. It is time to move the relocation reform debate beyond pure “best interests,” to the next stage, to a serious discussion of which cases warrant presumptions, and of what strength.

Key Points for the Family Court Community
• Pure best interests approach to relocation law is a failure
• Presumptions or burdens needed to reform the law, but not just “for” or “against”
• Presumptions are identified for four categories of relocation cases: interim moves, unilateral relocations, shared care, and predominant primary caregivers

     

CYBER‐ABUSE—A NEW WORLDWIDE THREAT TO CHILDREN'S RIGHTS

Cyberspace is a new frontier for both international and domestic family law. On the one hand, it presents great opportunities for society and, on the other, great dangers particularly for children. This paper explores a number of issues from a domestic and international family law perspective. These issues include:

• ? What is cyberspace, how has it emerged, and where is it likely to go?
• ? What are the potential dangers for children that arise from children's engagement with cyberspace?
• ? What is the nature and extent of domestic and international family laws that protect children from the dangers of cyberspace?
• ? What are some of the present and emerging policy issues that impact on these matters?

Cyber‐abuse is a term that encompasses a wide range of aggressive online activities.     

A Rigorous Quasi‐Experimental Design to Evaluate the Causal Effect of a Mandatory Divorce Education Program

All couples with minor children who filed for divorce within a specific 6‐week period (N = 191 couples) in one jurisdiction were ordered to attend a divorce education program. The control group included about 20 couples randomly selected from each of six 6‐week intervals before and six 6‐week intervals after the treatment interval (N = 243 couples). Archival records were searched for variables such as legal and residential custody award, visitation percentage, and relitigation. The impact of the program was assessed by evaluating, for each variable, whether the data for program interval departed from the straight (regression) line drawn through all the control group intervals. Only the visitation time award significantly differed: 27.75% for treatment couples and 22.46% for control couples. Analyses show that the father's attendance at the program primarily accounts for the difference.

Key Points for the Family Court Community
• There are considerable methodological weaknesses in most of the existing evaluations of divorcing parent education programs.
• Stronger, more scientifically rigorous—and thus persuasive—designs are possible in court settings, such as the regression discontinuity quasi‐experimental design we feature here.
• Archival records, such as various court filings, are a rich and relatively untapped source of data.
• Being mandated to attend a single 2‐hour divorcing parent education class caused an increase in the visitation time award in divorce decrees.
• There is a disconnect between being mandated by a judge to attend a program and actual attendance.