Custody Decisions Research Articles

Definitions of the Family as an Impetus for Legal Change in Custody Decision Making: Suggestions from an Empirical Case Study

Legal scholars and social scientists are increasingly calling on legislators, lawyers, and judges to recognize and embrace expanding definitions of the family. Implicit in such calls is the expectation that legal recognition of expanding definitions of the family will protect children's attachment relationships with adults, irrespective of their biological ties to those adults. Through a detailed, historical examination of custody decisions in disputes between biological and nonbiological parents in the state of Iowa, this research suggests that judicial recognition of more expansive definitions may not result in decisions that protect children's attachment relationships. This is true because the legal impact of family definitions appears to be contingent upon cultural and political factors that may undermine the expected effects of changing definitions. This research also suggests that judicial recognition of children's rights may be the most apt way to promote legal changes that will protect children's attachment relationships.

Children Exposed to Domestic Violence: Making Trauma‐Informed Custody and Visitation Decisions

ABSTRACTThis article explores the risks for young children and the challenges for courts that emerge when parents who are victims or perpetrators of intimate partner violence seek court decisions on child visitation or custody matters. We focus particularly on children age five and younger, a group that is disproportionately represented in families affected by intimate partner violence, and especially vulnerable to its traumatic impact. We examine the literature on children's response to violence between their parents and the literature on parental alienation, a counter‐charge that may arise when one parent alleges violence as a reason to limit the other parent's access to the children. We look at challenges faced by both mental health professionals and courts involved in custody determinations and make policy recommendations to help courts make trauma‐informed decisions that best serve children.

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

Whether or not custody evaluators, testifying as expert witnesses, continue to make specific custody recommendations, custody decision making will continue to be based upon inadequate and untested evidence unless and until we reform the family court system in American courtrooms. Judges and lawyers must have specialized knowledge and training about such things as the developmental needs of children, the effects of divorce on children, domestic violence, and child safety issues; lawyers must develop litigation as well as mediation and negotiation skills; specialized family courts utilizing individual calendars and case management techniques must be established; and the complexities and intellectual challenges of family law cases needs to be recognized.

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.

Judging the Best Interests of the Child: Judges' Accounts of the Tender Years Doctrine

With dramatic changes in family life over the last several decades, child custody law has shifted from a maternal preference to a more egalitarian standard, the best interests of the child. Despite this change in the law, scholars have debated whether gender continues to play a role in the resolution of custody disputes. Drawing on feminist legal scholarship and sociolegal research on judges, I assess the current debates over gender and custody by examining the accounts of judges who frequently adjudicate custody cases. I conduct in-depth, face-to-face interviews with twenty-five trial court judges in Indiana and investigate judges' accounts about whether they continue to use the tender years doctrine in custody disputes, even though the custody statute is explicitly gender-neutral. Then, I assess several competing explanations of the variation across judges' accounts, including the judges' gender role attitudes, gender, age, and political party affiliation. In exploratory analyses, I also examine the contested custody rulings of a subset of nine judges to assess whether judges' accounts are congruent with their actual custody decisions. I discuss the implications of these findings in light of feminist legal scholarship as well as empirical research on child custody adjudication.

Consequences of the Sex of the Custodial Parent on Three Indicators of Adolescents' Well-Being

The well-being of the children is a central argument in custody decisions, therefore the effects of the sex of the custodial parent on three indicators of the well-being of adolescents in Belgium (N = 713) are examined. By using stepwise analyses of variance (with MCA) the differences are tested between adolescents (boys and girls) in mother or father custodial arrangements with regard to three dimensions of well-being, other family characteristics being equal. In terms of locus of control and self-esteem, there is no difference. But there is a significant difference in terms of hopelessness. Additionally, the difference in perceived appreciation and maturity is controlled for; but these cannot explain the difference in hopelessness. Important is that the lesser perceived appreciation in father households has no percussions on the analyzed dimensions of well-being.

Therapeutic supervision with families of high‐conflict divorce

AbstractThe author describes therapeutic supervision by a therapist for helping families of high‐conflict divorce, a model derived from psychoanalytic principles applied to the study and treatment of dysfunctional family patterns at times of transition of the children from the care of one separated parent to another. Therapeutic supervision allows the collection of rich, accurate data about the family's functioning that inform the court's custody decisions, and it offers a naturalistic setting in which to study conflict and vulnerability and intervene in the form of powerful verbal and behavioral interpretations. The author gives guidelines for setting conditions and agreements that support the hard work of therapeutic supervision, and she concludes with a clinical case study. Copyright © 2004 Whurr Publishers Ltd.

Race (and Gender and Class) and Child Custody: Theorizing Intersections in Two Canadian Court Cases

In the summer of 2001, the Canadian media devoted attention to two court cases that resulted in mothers losing custody of their children. Kimberly Van de Perre and Nadia Hama might have been overlooked if the presentation of their cases had not evoked discussion regarding the relevance of claims of racism in custody decisions. Analysis of the media narrative reveals that the narrow focus on race distorted perceptions of these family situations, and contributed to the marginalization of the two single mothers involved. This paper examines this process to explore how an analysis based on multiple identities, and simultaneous existence of oppression and privilege, may have led to different outcomes for these two families.

Elijah and Ishmael: Assessing Cultural Identity in Canadian Child Custody Decisions

Elijah and Ishmael: Assessing Cultural Identity in Canadian Child Custody Decisions

Buscando America: Why Integration and Equal Protection Fail to Protect Latinos

Equal protection doctrine, including the Supreme Court’s decision in Brown vs. Board of Education, has done little to protect the equality of Latinos/as. This article provides an in-depth exploration of why equal protection fails to protect Latinos/as, focusing on inequality in education. Since at least the 1930s, Latinos have made legal challenges against school segregation and educational inequality. A paramount example of this struggle is demonstrated by Mendez v. Westminster School District, in which several Mexican-American families sued the school district to end the segregation of their children into inferior schools. This article discusses the many reasons why equal protection fails to protect Latinos in education, despite well-developed best practices for educating Latino/a students. First, the courts and society generally fail to recognize discrimination against minority languages like Spanish as a form of race discrimination. Second, the history of the education of Latinos/as demonstrates that the purpose of the educational system has been essentially to train Latino/as to become agricultural workers and laborers. The entire purpose of the educational system has been to assimilate Latinos into White, English-speaking society in a subordinate position. Equal protection jurisprudence also operates with assumptions of assimilation towards Whiteness and English-speaking. Implementing one-way assimilation towards Whiteness and English-speaking, however, denies the particularity and dignity of Latino/a identities and denies them equality. This is demonstrable in court decisions in various contexts, such as employment discrimination, jury service, and child custody decisions. Brown vs. Board of Education itself was based on similar, one-way assimilation towards Whiteness through attempted integration of public schools. This kind of reasoning denied equality both to Blacks and Latinos/as. The Supreme Court’s equal protection jurisprudence has historically privileged Whiteness, and current conceptions of equal protection, while embracing integration, assimilation and “colorblindness,” continue to reinforce White privilege. This article then discusses what equal education should mean for Latino students and describes long-known, but rarely implemented, best practices for educating Latino students. Rather than integrating and assimilating Latinos into conformity with White, English-speaking norms, a system of bilingual education should instead provide them equal education through the acknowledgement and protection of their linguistic and cultural identities. To conceptualize equality as a one-way assimilation toward a White, English-speaking norm is irreconcilably opposed to the concept of equality for minority cultures.

Purpose and Utility of Child Custody Evaluations: From the Perspective of Judges

This study examines the perspective of judges regarding child custody evaluations by mental health professionals. Ninety-seven judges completed an anonymous survey regarding: a) legal standards and personal biases influencing judicial custody decision-making; b) issues that prompt judges to order custody evaluations; c) expected evaluation procedures and report components; d) parts of the report judges find useful for decision-making; and e) the effect of the evaluation on litigation and judicial decision-making. Findings indicate that judges are most likely to order custody evaluations for allegations regarding sexual or physical abuse or parental unfitness. Judges reported that they expect a comprehensive procedure and find utility in an inclusive report. Survey findings suggest that custody evaluations play a significant role in judicial decision-making; however, judges are hesitant to have mental health professionals testify as to the ultimate custody question.

Guidelines for investigations and forensic report-writing by independent educational psychologists in custody disputes

Very often, the expert opinions of psychologists regarding custody of minor children in a divorce case results in a ‘battle of experts’, where findings are contested by other psychologists. Although psychologists render a highly specialised service within the legal system, they do not always remain neutral when entering that system. Other problems stem from shortcomings on the psychologist's part, lack of guidelines or inconsistent guidelines, uncertainty about criteria as well as the complex ‘best interests of the child (BIOC)’ standards currently used in custody decision making. Research, mainly ex post facto, has explored the areas of custody investigations and report writing for the development of a practice-orientated model. A description of guidelines operationalises the model, which contains elements of both the BIOC standard and the system theory (an individual cannot be understood in isolation from the interactional context of his or her immediate human environment). The data were collected from various sources and verified by means of a literature control. This article lays down guidelines that educational psychologists can follow from the start of the custody investigation to the actual writing of the forensic report, without exceeding the boundaries of their role while maintaining neutrality.

The court, child custody, and social change: The rhetorical role of precedent in a 19™ century child custody decision

In the late 19th century the United States experienced a shift in presumption from paternal custody following divorce to maternal custody. This paper examines one child custody decision in the midst of this shift and finds that, ironically, rhetorical appeals to precedent and tradition were used to change precedent and tradition. More specifically, social change was grounded in the court's implicit gender hierarchy and rhetorically justified by appealing to precedent and tradition in particular ways, demonstrating that precedent is a rhetorical device that has force when used persuasively.

Swords in the Hands of Babes: Rethinking Custody Interviews After Troxel

As King Solomon understood, custody disputes ordinarily allow no easy answers. Increasingly, legal actors have begun to rely on the child's custodial preference as a proxy for her best interests. In an effort to ascertain this preference without subjecting the child to the trauma of courtroom testimony, many states authorize courts to interview children in camera. Good intentions notwithstanding, these custody interviews pose considerable risk to children, to their parents, and to the State's best-interests quest. These risks increase dramatically when in-camera interviews serve as tools for searching out preferences that have not been publicly volunteered; when children's preferences are given very weighty or dispositive effect; and when the state denies parents an opportunity to challenge the accuracy and reasonableness of their children's statements. The U.S. Supreme Court's decision in Troxel v. Granville increases the urgency of a reassessment of these custody practices. Troxel's reaffirmation of the significance and breadth of parental rights strengthens parents' claim that procedural due process entitles them to access their children's in-camera statements. While such parental access reduces information risks, it exacerbates process risks for children, and counsels careful attention to the context and consequence of preference interviews. This Article briefly surveys preference practices, considers their costs and benefits, and urges a retreat from preference-driven interviews and preference-determinative custody decisions. The Article also considers parental demands for access to children's in-camera statements, and concludes that although such parental access increases risks for children, procedural due process favors it. Finally, the Article suggests that the law's increasing willingness to delegate the custody decision to children stems partly from failure of the open-ended best-interests custody model, and advocates substitution of a modified version of the ALI's more determinant approximation standard. This modified ALI model would allow a reformulation of in-camera interviews as opportunities for children to engage in free narrative, more fully empowering their speech while freeing them from the burdens of painful choice.

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

ABSTRACTToday, 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.

Influence of Child and Family Factors on Judicial Decisions in Contested Custody Cases*

To explore how child and family factors influence judicial decision making in contested custody cases, 18 family court judges participated in a semistructured interview that tapped (a) child and family factors considered relevant in determining child custody and (b) how these factors influence custody decisions. Judges cited a variety of factors as being influential, including the child's age and developmental status, the child's wishes regarding the custody arrangement, the child's stability, parental fitness, the history of the parent–child relationships, which parent has been the primary caregiver, each parent's willingness to foster the child's relationship with the other parent, and extrafamilial support. Results from a content analysis reflect the manner in which these factors influence judicial decision making. Emergent themes were identified based on four overarching factors.

Social Workers Custody Recommendations

This study of the custody recommendations of 130 social workers in Israel shows that they generally recommended custody with the parent with whom the child was expected to have the higher quality of life (as assessed by Shye's Systemic Quality of Life Model), whose economic status was better, who had fewer emotional, physical, and cognitive problems, and who were not engaged in criminal activity. The findings also show, however, that the disparities in the child's expected QOL with each of his/her parents had significantly greater explanatory power than that of these parental features and, moreover, that the parental features added little to its explanatory power. These findings highlight the importance of expected quality of life in custody decisions as well as the utility of the Systemic Quality of Life Model for examining and explaining custody decisions. In addition, the findings show that mothers who were poor or who had cognitive or psychological problems were around three times more likely to be awarded custody than fathers in the same situation. This difference suggests that the social workers weighed the father's problems against him more heavily than they weighed the mother's problems against her and provides yet further evidence of gender bias in professionals' custody recommendations.

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.

What Makes Genetic Discrimination Exceptional?

Recent advances in understanding the genetic basis of disease has inspired hope but also fear. While establishing a link between a person's genetic makeup and a propensity to disease may lead to better treatment, many scientists, physicians and genetic counselors also worry that it may lead to discrimination. Although access to health insurance is the primary concern, people also fear discrimination in life and disability insurance, employment and other contexts, such as child custody decisions or adoption. In response to this concern, many state legislatures have passed laws forbidding genetic discrimination. While most of these laws focus on health insurance, some also prohibit genetic discrimination in employment or in life or disability insurance coverage.These laws have been the subject of both praise and criticism. Defenders of the laws see them as important and necessary, though arguably incomplete. Critics view them as unjustified and unwarranted. However, the question that dominates current literature is whether genetic discrimination is meaningfully different from discrimination on the basis of general health status; or as the debate is often framed, whether anti-discrimination laws ought to be genetic or generic.

Factors Influencing the Application of Child Support Guidelines

ABSTRACT Using 507 divorce records, this study determines whether or not factors, such as parents' socioeconomics, child custody decisions, and characteristics of the legal system, affect the manner in which child support guidelines are applied in an urban and rural courthouse in New Hampshire. Stepwise logistic regressions found individual factors within the two broad categories of socioeconomics and child custody decisions to differ in these two courthouses. Factors, such as father's income, fathers granted the marital home, fathers with solo physical custody, and parents granted joint physical custody, increased the log odds of a departure from the guidelines in the urban courthouse. While the self-employment status of fathers increased the log odds of a departure from the guidelines, mothers with solo physical custody decreased the log odds of a departure from the guidelines in the rural courthouse.