Child Custody Determinations Research Articles

Translating “Best Interest”: Child Welfare Decisions at the US–México Border

“Best interest” is a principle that plays a central role in judicial decisions about child welfare and custody determinations. It figures prominently in court cases involving children in the United States foster care system, as well as child migrants applying for legal residency status. This article explores best interest as a site of translation, one that enables social workers and legal actors to make seemingly value‐free legal decisions that, in fact, codify a perception that the United States is necessarily the best place for all children to be raised, regardless of their specific circumstances.

A Tale of Two Religions: A Contractual Approach to Religion as a Factor in Child Custody and Visitation Disputes

This article focuses on the role of religious conflict between parents in determining child custody and visitation disputes. It suggests a framework for reconciling parental control over religious observance and training with the state's duty to protect the child's best interests. First, it examines the history of English and American child custody law and analyzes modern custody cases in which religion is a factor. Next, it addresses the alarming recent attempt by courts to resolve religious disputes with a shared custody approach, awarding 'spiritual custody' to one parent and 'physical custody' to the other. Finally, this article proposes a contractual approach to the question of religion in parental child custody and visitation disputes. Since religion is a legitimate issue to be considered in fashioning child custody decisions, courts should be required to consider the religious needs of the child, as a component of the child's educational and psychological well-being. However, constitutional issues need not be reached. Indeed, it is likely that courts can avoid most troublesome constitutional issues by enforcing the express and implied contracts created by the parties before their divorce. Ultimately, the approach suggested here most effectively protects the actual religious needs of parents and children by enforcing the express and implied contracts created in the intact, pre-divorce family.

PENEGAKAN HUKUM TERHADAP HAK ASUH ANAK AKIBAT PERCERAIAN DALAM PRAKTIK PERADILAN DI BALI

Our research aims to find and analyze the laws applied by judge to custody of children due to divorce related to the enactment of legal pluralism. Related to this, the issues raised in this research are: 1). What law applied by judges to child custody of divorce related to the enactment of legal pluralism? 2). What factors are the basis for consideration of the judge in determined custody of children divorce?. The results showed that the judge in determined custody of children of divorce apply national law. That is child to custody by mother may or paternal. Children who are under the care of the mother did not lose the right to inherit the father's side. The factors on which the consideration of the judge in determining child custody is a national marriage law, the cause of the divorce, and ensuring the interests the future of children, parenting by mothers did not abort child right inherit the father's side. The conclusion that the judge in determined the custody of children due to divorce apply national law. The factors on which the consideration of the judge in determining child custody is a national law, the cause of the divorce, and ensuring the interests of future child, parenting did not abort of child in her father's right to inherit.

親権者指定における新たな試み

親権者指定における新たな試み

The legitimation contradictions of the child removal from a family: the perspective of the social worker

Straipsnyje aptariami vaiko paėmimo iš šeimos legitimavimo prieštaravimai, su kuriais susiduria socialiniai darbuotojai priimdami sprendimą dėl vaiko paėmimo iš šeimos. Atskleidžiami sprendimo prieštaravimai, kylantys dėl teisinių, profesinių ir asmeninių veiksnių sąveikos. Pristatomas empirinis tyrimas, kuriuo siekiama atskleisti, kokią vietą priimant sprendimą paimti vaiką iš šeimos užima įstatymas, atskleidžiama, kaip, priimant sprendimą dėl vaiko paėmimo iš šeimos, reiškiasi ir tarpusavyje sąveikauja asmeniniai, profesiniai ir teisiniai veiksniai.

The Impact of Foreign Law on Child Custody Determinations

The author asserts that in contested cases concerning a child's proposed visit to a foreign country or a child's international relocation, it is essential for decision makers to appreciate the impact that the laws and procedures of the foreign country may have on the child's future well-being. Such cases require an adequate consideration, often with expert testimony, of whether the terms of a proposed custody order will in fact be recognized and effectively enforced in the foreign country, and for how long, since there may otherwise be serious adverse consequences for the child and a left-behind parent and foreign courts will generally have jurisdiction under their own laws to modify custody orders issued by a U.S. court.

The Impact of Internet Pornography Use and Cybersexual Behavior on Child Custody and Visitation

Use of the Internet has been increasingly associated with sexual behaviors. Referred to as online sexual activity, these sexual behaviors include cybersexual behavior and pornography usage. Child custody evaluators are increasingly being asked to assess the impact of these behaviors on child custody and visitation determinations. In this article, we review the Internet-related sexual behaviors of cybersex and pornography usage, which have been associated with an increased risk of compulsive sexual behavior. Gender differences, general effects of pornography, and the effects of cybersex on the family are reviewed. Healthy sexuality and normative sexual behaviors in children are described. Legal issues and case law are comprehensively reviewed.

Autonomy and the Unintended Legal Consequences of Emerging Neurotherapies

One of the ethical issues that has been raised recently regarding emerging neurotherapies is that people will be coerced explicitly or implicitly in the workplace or in schools to take cognitive enhancing drugs. This article builds on this discussion by showing how the law may pressure people to adopt emerging neurotherapies. It focuses on a range of private law doctrines that, unlike the criminal law, do not come up very often in neuroethical discussions. Three doctrines—the doctrine of mitigation, the standard of care in negligence, and child custody determinations in family law—are addressed to show how the law may pressure people to consent to treatment by offering a choice between accepting medical treatment and suffering a legal disadvantage. The doctrines considered in this article apply indirect pressure to submit to treatment, unlike court-ordered medical treatment, which applies direct pressure and is not addressed here. The outcome of this discussion is to show that there is a greater range of social pressures that may encourage the uptake of novel neurotherapies than one might initially think. Once treatments that were developed and offered with therapeutic benefits in mind become available, their existence gives rise to unintended legal consequences. This certainly does not mean we should cease developing new therapies that may be of tremendous benefit to patients, but it does raise some questions for physicians and for legal policy-makers. How should physicians, who are required by medical ethical principles to obtain valid consent to treatment, react to a patient’s reluctant consent that is driven by legal pressure? From the legal policy perspective, are our legal doctrines satisfactory or should they be changed because, for example, they unduly promote the collective interest over individual freedom to reject medical treatment or because they channel us toward economically efficient treatments to the detriment of more costly but potentially superior approaches of dealing with behavioural problems?

Collateral Damage: The Lived Experiences of Divorced Mothers Without Custody

This qualitative study utilizing narrative analysis and grounded theory examines the history and experiences of 14 Canadian women who have lost custody of their children within a legal divorce process. Each woman's storied experience focused on themes of attachment and loss associated with involuntary child absence, legal abuse within the adversarial system, and judgment based on nonconformity to a motherhood ideal; physical violence and emotional abuse in the family system; access denial and parental alienation; stigma and lack of support services; and serious financial losses. Women's perceptions of their children's needs in the divorce process, mothers' responsibilities in relation to those needs, and the responsibility of social institutions to support mothers as parents were also examined. The study sought mothers' views about needed changes to the legal framework of child custody determination and other priorities. Implications for socio-legal policy are discussed, including a consideration of a rebuttable legal shared parental responsibility presumption as facilitating the most salutary postdivorce outcomes for women and children, as are guidelines for direct service provision.

Shared Parental Responsibility

The purpose of this article is twofold. First, our aim is to provide a selective overview and analysis of divorce research in the past five year period (2000-2005), during which important new data on children, families, and divorce have appeared. Much of this data challenges current socio-legal policy and “practice wisdom,” and includes: (1) the emergent perspective of adult children of divorce reflecting upon their experiences and preferences growing up as children of divorce; (2) studies comparing child and family outcomes in joint and sole custody families; and (3) new data on the distribution of child care tasks and responsibilities in families. These data support an approach to postdivorce parenting based on reducing the harms attendant to divorce for children and parents, parental equality, and family autonomy as most in keeping with children's needs and the principle of “the best interests of the child, from the perspective of the child,” which, it is argued, provides a more child-focused standard for child custody determination than current approaches. Second, building on this research foundation, we propose a new model of post-divorce parenting: a “shared parental responsibility” framework, in which parental responsibilities precede custodial rights, and children's “best interests” are addressed by means of identifying both their needs and parental and societal responsibilities corresponding to these needs.

MAKING A PLACE AT THE TABLE:

This response to Timothy Tippins and Jeffrey Wittmann's article “Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance” builds upon the authors’ conclusions that custody evaluations cannot and should not be a substitute for the socio‐legal judgment of the best interests of the child. Recognizing that clinical humility and judicial vigilance may not be sufficient to restrain the misuse of psychological evaluation, we offer for consideration three structural changes that would provide for a more appropriate use of the skills and talents custody evaluators bring to legal decisions. We suggest using custody evaluators in the less adversarial setting of preparing parenting plans, revising the procedures by which custody evaluations are elicited in litigation, and adopting the approximation standard for child custody determinations.

Child custody determinations in cases involving intimate partner violence: a human rights analysis.

Intimate partner violence and child abuse are recognized both as public health concerns and as violations of human rights, but related government actions and inactions are rarely documented as human rights violations in the United States. Men who abuse female partners are also highly likely to abuse the children of these women. However, family courts are reported to often ignore risks posed by abusive men in awarding child custody and visitation. Battered women involved in child custody litigation in Massachusetts (n = 39) were interviewed. A recurring pattern of potential human rights violations by the state was documented, corresponding to rights guaranteed in multiple internationally accepted human rights covenants and treaties. The human rights framework is a powerful tool for demonstrating the need for legal, social, and political reform regarding public health concerns.

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.

Commentary. Changing the rules for determining child custody in divorce cases

Commentary. Changing the rules for determining child custody in divorce cases

The problem of "helpfulness" in applying Daubert to expert testimony: Child custody determinations in family law as an exemplar.

The problem of "helpfulness" in applying Daubert to expert testimony: Child custody determinations in family law as an exemplar.

The problem of "helpfulness" in applying Daubert to expert testimony: Child custody determinations in family law as an exemplar.

The problem of "helpfulness" in applying Daubert to expert testimony: Child custody determinations in family law as an exemplar.

Changing the rules for determining child custody in divorce cases.

Mental health professionals who conduct child custody evaluations in divorce face two huge problems. First, available assessment methods are sharply limited. Second and more basically, the legal standard guiding child custody determinations, the best-lnterests-of-the-child test, is a vague directive that presents major, perhaps impossible problems for custody evaluators—and for the judicial system. Given these circumstances, one solution for mental health professionals Is to refuse to participate in the custody decision-making process. In this commentary, I argue for a more positive solution: changing the system rather than working (or refusing to work) under it. Two especially promising ways of changing the system for deciding custody in divorce are to (1) promote divorce mediation and other forms of private dispute resolution, and (2) adopt a new legal standard, the approximation rule.

Explaining Child Custody Determinations in Canada

AbstractMany earlier studies of Canadian child custody determinations have been written from ideological and feminist viewpoints. This study attempts to look at this subject from an empirical and sociological stance, within its historical context. Several related issues are considered, including the central issue of sexism, and the effects of legislation and case law on these determinations. Models of how custody cases settled by trial affect those negotiated outside the courtroom are explored. This study analyzes decades of Canadian child custody orders and other evidence to shed light on trends in judicial decision making and their causes.

Examining cross-state variation in the increase in father-only families

Each state has the power to establish its own policy and laws relating to child custody determination. The number of single-parent families with children that are headed by fathers has been growing in the United States. This paper explores the extent of cross-state variation in the prevalence in father-only families in 1990, and the extent to which there was cross-state variation in the increase in father-only families in the 1980s. The 1980 and 1990 Public Use Microdata Samples (PUMS) drawn from the US decennial censuses are used. Decomposition analyses of growth indicate that increases in the number of father-only families occurred across all states during this period, but at varying rates. The primary reason for the increase in most states is an increase in the proportion of ever-married single-parent families that are headed by a father. It is for these families that are headed by divorced or separated parents that state policy relating to child custody determination is most relevant.

Judges' Reliance on Psychological, Sociological, and Legal Variables in Contested Custody Decisions

Judges' use of case specific data in determining child custody arrangements was examined. Information collected on 60 contested initial disposition or disposition modification cases was used to model judicial decision-making. The sample was not representative of the full population of divorcing families in that it was disproportionately comprised of high conflict cases in which there were few unequivocally safe placement options. Our results indicated that judges generally followed the legal statutes, attended to the nature of family relationships, and did not rely on a general preference for one parent. Moreover, they demonstrated a strong reliance on the impressions and recommendations of Guardian Ad Litcm personnel. However, some notably important case information was not weighted heavily in judges' decisions. In particular, information regarding the degree of parental conflict, consistently found to be very important to post-divorce child adjustment, did not appear to be used by judges in these cases. Moreover, neither parental substance abuse nor a history of child abduction by a parent influenced decision-making. Implications of these findings are discussed.