Custody Decisions Research Articles

Post-divorce custody arrangements and binuclear family structures of Flemish adolescents

Because of the tendency towards equal parental rights in post-divorce custody decisions, the number of children living partially in two households after divorce has increased. Because of this evolution, traditional family typologies have been challenged.

Parents behaving badly: whether, in the wake of Miller-Jenkins, public policy considerations should play a role in custody decisions

Miller-Jenkins v. Miller-Jenkins illustrates the dilemma facing courts in contentious custody disputes: when should the best interests of one child cede to society’s interests? Undoubtedly aware of this dilemma, the Miller-Jenkins court cloaked its public policy concerns under the guise of the child’s long-term interests. By analysing Miller-Jenkins as it relates to the USA and foreign cases, this article contextualises the situation, showing how courts can attempt to resolve this dilemma. Specifically, a Canadian case demonstrates how a court can assess the child’s psychological needs before reaching a decision supported by public policy considerations. Such considerations can improve courts’ decision-making capabilities.

Child Custody and Homosexual/Bisexual Parents: A Survey of Judges

Judges carry the burden of making custody decisions based on multiple factors. Parental sexual orientation is one increasingly considered. This survey assessed the opinions and knowledge of family court judges from eight East Coast states. A one-page survey was mailed to judges, comparing multiple demographic characteristics. Geographic location reflected significant differences comparing Northeastern to Southeastern United States, Deep South states to border Southern states, and a state allowing same-sex civil unions to other Northern states. Awareness regarding available guidelines and current literature correlated positively with fewer negative opinions related to parental sexual orientation; however, causation of the correlation was unclear.

A scoping review of qualitative studies about children experiencing parental separation

This article explores a scoping review of qualitative studies about children’s experiences and feelings during times of parental separation. The purpose of the review was to explore children’s feelings and attitudes about their parents’ separation and how their voices are heard during times of parental separation. The scoping review examined 44 studies in 13 countries involving 1525 children. While the studies examine how and why children’s voices are important in the decision-making process adults typically remain the gatekeepers of their voices. Children’s participation in child custody decision-making must include them at all levels of practice, policy and research.

SEXUALITY IN CHILD CUSTODY DECISIONS*

For gay and lesbian parents, child custody decisions have progressed considerably since the time it was generally accepted by courts that homosexual parents were per se unfit for custody. Most states now employ an orientation blind standard or nexus test, meaning that the court will not take a parent's orientation into account unless there is evidence of harm to the child. Although this is a step in a positive direction, there are unforeseen costs. Orientation blindness may seem neutral on the surface because nexus tests usually employ the term “sexual orientation,” but the question of harm is applied only to homosexual parents and not heterosexual parents. Gay and lesbian parents who wish to raise sexual orientation claims about the positive aspects of role‐modeling and community inclusion may be discouraged from doing so because parent‐child role‐modeling has traditionally been seen as recruitment, predation or the disruption of “normal” sexual development when the parent is gay or lesbian.Key Points for the Family Court Community: Gay and Lesbian parents have strong incentives to argue against parent‐child imitation. Heterosexual parents are not similarly constrained about positive modeling for their children. Orientation‐blind standards may not be neutral in the application because of the strong social belief in parent‐child imitation. If courts are aware of the disincentives that lesbian and gay parents have against arguing for positive modeling, they can more neutrally apply the orientation standards.

Nonmarital Unions, Family Definitions, and Custody Decision Making

Relationships that have not been formalized by marriage but that function like marriage are increasingly common among couples. Many of these relationships involve children who are related to only one of the adults but who have established parent‐child relationships with both adults. This raises questions about how best to preserve children's attachment relationships in the event that the adult relationship dissolves. Recent scholarship advocates two distinct approaches: some argue for legal recognition of expansive definitions of the family whereas others advocate for legal recognition of children's rights. This research examines the efficacy of these competing arguments. Findings suggest that judicial recognition of family definitions is not, on its own, enough to protect nonbiological attachments. Instead, family definitions must also be combined with a focus on children's rights. The legal and policy implications of these findings are discussed.

CHILD CUSTODY EVALUATION PRACTICES: A 20-YEAR FOLLOW-UP

This study surveyed 213 experienced child custody evaluators utilizing the same questionnaire in the Ackerman & Ackerman 1997 and Keilin & Bloom 1986 studies. Demographic information, evaluation practices, custody decision-making, and recommendations were surveyed. Comparisons were made across all three studies to identify the similarities and differences in child custody evaluation practices over the past 20 years. This study added questions about risk management and ethical issues, and current practices in placement/access schedules. The reader is advised that not engaging in the practices performed by a majority of psychologists could result in a difficult testimony experience.

FAMILY DEFINITIONS AND CHILDREN'S RIGHTS IN CUSTODY DECISION MAKING: THE IMPORTANCE OF A CHANGING LITIGANT CONTEXT

Recent scholarship has advocated two distinct approaches to promoting the preservation of children's attachment relationships during custody disputes between their biological and nonbiological parents. Some scholars argue that legal recognition of expansive definitions of the family is the key to protecting children's attachments, while others argue that such protection is contingent upon legal recognition of children's rights. This research examines the efficacy of these competing arguments through an analysis of 75 cases decided in 21 states and the District of Columbia between 2004 and 2005. Findings suggest that judicial attention to definitions of the family is generally confined to cases involving specific types of litigants; namely, former homosexual partners, couples who utilized fertility technologies, former stepparents, and presumptive fathers. In these instances, attention to broad conceptions of the family is associated with the maintenance of children's attachment relationships. Beyond this particular context, however, judges focus almost exclusively on balancing children's interests and rights against those of their biological parents. These findings suggest that both children's rights and family definitions influence judicial decisions, but their impact is context specific. For those scholars advocating legal change, this is an important insight because it shifts the debate from an “either/or” focus to one that recognizes the importance of the litigant context in custody decision making.

Domestic Violence (DV) Cases in Custody Decisions in Swedish Courts: In “the Child's Best Interest” and for “Gender Equality”

Domestic Violence (DV) Cases in Custody Decisions in Swedish Courts: In “the Child's Best Interest” and for “Gender Equality”

APLIKASI PRINSIP KEBAJIKAN KANAK-KANAK DALAM KES HADANAH

This article discusses about the principle of the welfare of the children or the best interest of the children in determining custody decisions under Islamic jurisdictions. Although the qualifications of the conflicting parties are a matter of great importance, the welfare of the children is the paramount consideration with the aims protecting the childrens interests. The qualifications' aspects or other matters are examined only insofar as they relate to their welfare. The discussions also evolve regarding irresponsible and neglectful actions committed by the parents denying the rights and welfare of their own children.

Custody Evaluators’ Beliefs About Domestic Violence Allegations During Divorce: Feminist and Family Violence Perspectives

Approximately, 20% of divorcing couples in the United States require judicial intervention to reach a custody agreement. In such cases, courts often call on child custody evaluators to conduct comprehensive evaluations and recommend custody agreements and services that meet children's best interests. Estimates suggest that allegations of domestic violence (DV) are raised and substantiated in about 75% of these cases. Custody evaluators are thus in a position to ensure that divorcing parents with DV receive effective services and enter into safe custody agreements. They are also in a position to minimize or deny the seriousness of DV and its relevance to custody decisions. The present study uses grounded theory methods to examine how custody evaluators' theoretical perspectives on DV and beliefs about custody disputes in the context of DV are related to their evaluation process and recommendations.

The Gender Paradigm and the Architecture of Antiscience

The gender paradigm is the view that most domestic violence (DV) is maleperpetrated against females (and children) in order to maintain patriarchy. Based on functionalist sociology, it has been the prominent DV perspective in North America and Western Europe, framing criminal justice policy to DV, court understanding of DV, court disposition of DV perpetrators to psychoeducational groups, and custody decisions. Research evidence contradicts every major tenet of this belief system: female DV is more frequent than male DV, even against nonviolent partners, there is no overall relationship of control to DV, and abuse perpetrators who use intimate partner violence (IPV) for coercive instrumental reasons are both male and female. Research supporting the gender paradigm is typically based on self-selected samples (victims from women’s shelters and men from court-mandated groups) and then inappropriately generalized to community populations. The gender paradigm is a closed system, unresponsive to major disconfirming data sets, and takes an antiscience stance consistent with a cult. In this article, I compare the responses of this gender cult to other cults and contrast it with a scientific response to contradictory data.

ALIENATING AUDIENCES FROM INNOVATION: THE PERILS OF POLEMICS, IDEOLOGY, AND INNUENDO

When judging innovative programs like Family Bridges™, it is important to balance careful scrutiny with openness to new ideas. Judicial responses to children who reject a parent are best governed by a multifactor individualized approach. A presumption that allows children and one parent to regulate the other parent's access to the children is unsupported by research. A custody decision based solely on the severity of alienation leaves children vulnerable to intensification of efforts to poison their affections toward a parent. Concern with possible short‐term distress for some children who are required to repair a damaged relationship should not blind us to the long‐term trauma of doing nothing. Professionals are urged to minimize the infusion of polemics, rigid ideology, and rumors when offering opinions with inadequate information, particularly public statements that risk harming children.

The Role of the Psychological Parent in the Dissolution of the Homosexual Relationship

This note analyzes the definition of the “psychological parent” in its application to the dissolved homosexual relationship. In urging state courts to render custodial decisions not solely on the basis of the parent's biological ties to the child, but also on the presence of a psychological relationship between the non-biological parent and the child in question, this note reviews conflicting state court decisions that discussed the doctrine of the “psychological parent” and determined whether a non-biological parent was fit to receive custody of his or her child once dissolution of the couple's relationship had occurred. United States state courts frequently rely upon the “best interests of the childl” standard when making custodial decisions. It is this author's position that the application of the “psychological parent” doctrine is what is in the “best interest of the child” when awarding custody to non-legal parents, and as such should be at the forefront of state court decisions before a determination of child custody is made.

Domestic violence and child custody: are family court professionals' decisions based on erroneous beliefs?

If child custody decisions are based on erroneous beliefs, family courts may not be acting in the best interests of children. This study examined family court professionals' beliefs about family violence. Respondents (N = 410) of diverse professions, including child custody mediators, evaluators, and therapists, family law attorneys and judges, victim advocates and university students, completed a 10‐item multiple‐choice quiz. Results revealed low rates of correct responding, with respondents correctly answering approximately three out of 10 items on average, based on current research in the field. Overall, response rates were highly consistent with the discredited patriarchal paradigm. Shelter workers and victim advocates had the lowest average score, and men were found to have slightly higher scores than women. More troubling, students' scores were not significantly lower than those of family court professionals. Implications are discussed with respect to decision‐making in the context of child custody disputes.

El impacto de la inmigración religiosa en la sociedad y en la jurisprudencia de los Estados Unidos de América

American religious diversity evolution is a product of settlements history because of religious persecution, followed for the new current economic immigration; its geography is a map of religions, according to the immigrant placements from whom keep a religious citizenship. Freedom of Religion and freedom of conscience restrictions are evaluated analyzing the clauses of American Constitution's First Amendment, so that conscience cases involve debates on free exercise and the wall of separation. The relationship among both clauses resolving religious diversity is extended to school and family, two important aspects developed in a human life. The equality and religious freedom at school and religious factor in child's custody decisions are also studied. This research work reports on experts opinions analysing cases concerning these topics.

Governmental Domestic Violence Policies: A Theoretical and Practical Analysis

Current domestic violence policies developed over past decades at the behest of women's advocacy groups and other interest groups. Through their efforts, perceived norms of behavior have been established and government power has been exerted to enforce those norms. Now, government policies and procedures regarding domestic violence are being questioned based on their impact on both alleged abusers and their alleged victims. Feminist law professors question domestic violence policies including mandatory arrest laws, mandatory no-contact orders, and no-drop prosecution (against the victims' wishes) policies. These policies many times ignore alleged victims' rights and wishes and decrease alleged abusers' perceptions of procedural justice related to domestic violence cases. Consequently, current policies may make victims less, rather than more safe. Under current policies, people can easily file questionable domestic violence claims for almost any reason, including circumventing normal court procedures for family divorce and custody decisions. This study uses data from West Virginia as an example. Over time, investigations and arrests for domestic violence increased dramatically overall while investigations related to aggravated assault and homicide declined. Less than twenty percent of domestic violence petitions filed in West Virginia lead to the issuance of a protective order. Estimated identifiable governmental costs associated with denied or dismissed domestic violence petitions exceed $18 million annually in West Virginia. Any benefits of increasingly proactive domestic violence policies must be compared to their costs. A new social norm that creates a high cost for false domestic violence claims is needed.

Homophobia in child custody cases: An experimental study

We examined the effects of litigant sexual orientation, litigant gender, child gender and participant level of homophobia on custody decisions. One hundred and fifty-four Swedish law students in their final years of education responded to vignettes describing the litigants and the general circumstances of a child custody case. Vignettes varied regarding litigant sexual orientation, litigant gender and child gender, and were followed by a question concerning which of the litigants ought to be awarded custody, along with scales aimed at measuring the perceived parenting ability of the litigants. As a separate stage, participants responded to a scale measuring homophobia. The results revealed that there was no influence of litigant sexual orientation, child gender or participant level of homophobia on custody decisions, and that the mean level of homophobia of the participants was low, although it was shown that male participants were more homophobic than female participants. The generalisability of the findings to Swedish practitioners of law was discussed. Among other things the participants were of a different generation than the majority of law professionals in the field today.

How women make custody decisions and manage co-parenting with abusive former husbands

This grounded theory study examined the processes by which women make custody decisions and manage co-parenting after divorce with abusive former husbands. Nineteen women who left abusive husbands were interviewed. Fears, pragmatic concerns, and family ideology pushed them toward custody agreements that continued their involvement with former husbands after divorce. Men who were controlling during marriage were very involved with children postdivorce and continued to exert control over mothers. As a result, women managed conflict, set boundaries, and resisted control in the context of ongoing fear. Postdivorce abuse, positive changes in fathers, and children’s recognition of abuse influenced how women co-parented over time. Fears, pragmatic concerns, and family ideology continued to influence their decisions as they planned for the future.

An Exploration of the Impact of the Family Court Process on “Invisible” Stepparents

Child custody decisions on separated families seldom acknowledge the impact that such decisions have on subsequent partners of the biological parents. New partners are thus “invisible” in litigation in the Family Court. This project utilised a qualitative research methodology to explore this experience with a purposive experiential sample of 12 second partners. The primary themes identified in thematic content analysis were exclusion and invisibility in a system over which they had little control. The findings suggest that the negative psychological impact would be lessened if a policy of inclusion was adopted in the Family Court process.