Family Law Professionals Research Articles

Judicial settlement‐seeking in parenting disputes: Consensus and controversy

AbstractThe judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision‐making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre‐trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement‐seeking family judges. Despite the general support for settlement‐seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

TRAINING, SKILLS, AND PRACTICES OF PARENTING COORDINATORS: FLORIDA STATEWIDE STUDY

This report details findings from the nation's first statewide study on parenting coordination. A survey was presented to all known practicing parenting coordinators (PCs) in Florida (N = 207), with 67 (32%) responding. Data concerning PC demographics, how PCs do their work, and how they perceive their clients at different stages of the parenting coordination process suggest substantial similarity between mental health and family law professionals in almost every realm of questioning. Study limitations, implications for further research, and practice considerations are discussed.

Fault, Gender Politics and Family Law Reform

Recent public debates about family law reform have revealed both support for and criticism of legislative policies that seek to shape social norms. Amidst this debate was a suggestion from some quarters that the Whitlam Government's removal of fault‐based divorce is responsible for the gendered tensions that characterise modern reform debates. This article draws on archival records and interviews conducted with family law professionals who worked in the system in the 1970s and experienced the transition to the no‐fault system, to explore the principles underlying the introduction of the Family Law Act of 1975 and to identify the sources of continuing dissension about its impact.

PARENTAL ALIENATION AND THE DYNAMICS OF THE ENMESHED PARENT-CHILD DYAD: ADULTIFICATION, PARENTIFICATION, AND INFANTILIZATION

When caregivers conflict, systemic alliances shift and healthy parent-child roles can be corrupted. The present paper describes three forms of role corruption which can occur within the enmeshed dyad and as the common complement of alienation and estrangement. These include the child who is prematurely promoted to serve as a parent's ally and partner, the child who is inducted into service as the parent's caregiver, and the child whose development is inhibited by a parent who needs to be needed. These dynamics—adultification, parentification and infantilization, respectively—are each illustrated with brief case material. Family law professionals and clinicians alike are encouraged to conceptualize these dynamics as they occur within an imbalanced family system and thereby to craft interventions which intend to re-establish healthy roles. Some such interventions are reviewed and presented as one part of the constellation of services necessary for the triangulated child.

Legal Practitioners’ Perspectives on the Cohabitation Provisions of the Family Law (Scotland) Act 2006: Research Report

This research report records the findings of the first empirical study of the functioning of the new provisions creating financial remedies for cohabiting couples in the Family Law (Scotland) Act 2006. The year-long project aimed to understand the operation of the provisions in the first three years of the legislation’s life by examining the experiences and perspectives of legal practitioners and other selected family law professionals. The study drew on two data sources - postal questionnaires and follow up, in-depth telephone interviews – providing both quantitative and qualitative data. Issues examined included the nature of the cases in which and frequency with which the provisions were being used, the type of issues arising, how far through the legal system cases progressed before concluding, the cost and effect for clients of using the provisions, and an assessment of perceived benefits and difficulties the provisions have brought for potential pursuers and defenders (applicants and respondents). An appendix to the report provides a full analysis of case law under the Act up to May 2010. As well as providing a useful local evaluation for Scottish family lawyers and policy makers, the findings have implications for policy makers elsewhere. The final chapter of the report specifically addresses the lessons that can be drawn for any future reform in England and Wales.The briefing report may also be found on SSRN via: http://ssrn.com/abstract=1736619.

No Longer Living Together: How Does Scots Cohabitation Law Work in Practice?

This briefing paper summarises a research report which records the findings of the first empirical study of the functioning of the new provisions creating financial remedies for cohabiting couples in the Family Law (Scotland) Act 2006. The year-long project aimed to understand the operation of the provisions in the first three years of the legislation’s life by examining the experiences and perspectives of legal practitioners and other selected family law professionals. The study drew on two data sources - postal questionnaires and follow up, in-depth telephone interviews – providing both quantitative and qualitative data. Issues examined included the nature of the cases in which and frequency with which the provisions were being used, the type of issues arising, how far through the legal system cases progressed before concluding, the cost and effect for clients of using the provisions, and an assessment of perceived benefits and difficulties the provisions have brought for potential pursuers and defenders (applicants and respondents). An appendix to the report provides a full analysis of case law under the Act up to May 2010. As well as providing a useful local evaluation for Scottish family lawyers and policy makers, the findings have implications for policy makers elsewhere. The final chapter of the report specifically addresses the lessons that can be drawn for any future reform in England and Wales.The research report is also available via SSRN: http://ssrn.com/abstract=1736612.

Between a Rock and a Hard Place: Resident Mothers and the Moral Dilemmas they Face During Custody Disputes

Recent scholarship has critiqued the tendency for separated mothers in custody disputes to be defined as hostile and alienating. Through the presentation of three case studies, drawn from an interview-based study with 21 women, we show how such pejorative constructions only arise when the conflicting gendered moral accountabilities of contemporary motherhood are overlooked. We found that mothers tend to believe that contact with non-resident fathers is generally in a child’s best interests. However, as a result of balancing complex moral obligations for the care of their children, they may raise questions about particular kinds of arrangements for contact with particular fathers. We argue, therefore, that family law practice will lead to better outcomes for children when professionals listen to the history of, and reasons for, mothers’ positions. To enable family law professionals to undertake this task, we offer an alternative interpretive framework for making sense of women’s stories. Should family law professionals make use of this framework, it is likely that they will understand that the positions mothers adopt are often the outcome of the difficult moral dilemmas they encounter in caring for their children, and that the reductive rubric of the ‘hostile mother’ needs to be treated with scepticism.

NEGLECTED INFANTS IN FAMILY COURT

This paper applies the science of early childhood development to the question of neglect in infancy to offer best practice guidance to family law and child protection professionals charged with acting in their best interest. The paper discusses the challenges of presenting cases of infant neglect, particularly emotional neglect, to the court. Current science on the implications of neglect for brain development, and long term mental health are discussed. Recommendations for assessment, intervention and questions that should be addressed in court deliberations are outlined.

Attachment Methodology in Custody Evaluation: Four Hurdles Standing Between Developmental Theory and Forensic Application

Post-separation and post-divorce child custody guidelines have evolved from one-size-fits-all, gender-biased and adult-centered norms toward today's resource-intensive, child-centered best-interests standard. For all of its broad appeal, the best-interest standard remains ill-defined. The present paper discusses attachment theory as an empirically rich, developmentally-informed and systemically-oriented model with great promise to some day inform child custody litigation but which remains, as yet, impractical and without adequate validation for this application. Four hurdles are identified which family law professionals must yet overcome before this wealth of data can begin to become part of best-psychological-interests custody evaluations.

The Sieve Model: An innovative process for identifying alternatives to custody evaluations

AbstractThis article reviews the development of the Sieve Model, conceived from dissatisfaction with adversarial processes that encouraged endless destructive fighting and depletion of financial and emotional family resources. Adversarial approaches discourage constructive problem solving and cooperation and are very hard on children. Rather than a piecemeal approach toward divorce, a systemic model was conceived. The Sieve Model is being implemented in the 20th Judicial Circuit of the State of Florida through differentiated case management, after a study revealed that protracted cases primarily involved disputes over children. Families are invited to use pertinent elements in an individualized fashion. Family law professionals are challenged to develop other solution‐based efforts akin to mediation to assist families of divorce. The Sieve Model encourages participants to practice solving problems rather than creating them, decreasing divorce brutality and postjudgment conflicts.

PARENTAL REACTION TO THE DISABLED CHILD:. Implications for Family Courts

The special needs child demands adept and flexible care. This becomes harder to provide when the child resides in two homes or when the parents are in conflict about the child's diagnosis. To secure effective intervention, parents must become mini-experts in their child's condition, advocating tirelessly to secure necessary educational, financial, and medical assistance. These parents, confronted with the reality of their child's diagnosis, must also face the reality of a different future than the one they had imagined for their child and themselves. This can trigger a complex and fluid grieving process that is different for every parent. Understanding the role of grief in custody proceedings can provide a useful lens for viewing the vastly dissimilar opinions these parents often present. Failing to recognize the distorting effect of grief places family law professionals at a distinct disadvantage in dealing with these complex issues.

Parental Alienation in Light of Attachment Theory

Few ideas have captured the attention and charged the emotions of the public, of mental health and legal professionals as thoroughly as the concept of parental alienation and Gardner's (1987) Parental Alienation Syndrome. For all of this controversy, the alienation concept stands outside developmental theory and without firm empirical support. The present paper explores alienation and its conceptual counterpart, alignment, as the necessary and natural tools of child-caregiver attachment (Ainsworth & Wittig, 1969; Bowlby, 1969) and of family system cohesion. This conceptual foundation offers developmentalists, clinicians, and family law professionals alike a common language and valuable instruments with which to understand those relatively infrequent but highly charged circumstances in which these tools are used as weapons, particularly in the context of contested custody litigation. The need to establish baseline measures, child-centered interventions, and legal remedies anchored in the attachment model is discussed.

LEADING BY EXAMPLE

Family Court Review is the leading interdisciplinary academic and research journal for family law professionals. The journal provides comprehensive coverage of family court practice, theory, research, and legal opinion.

A legal perspective on family psychology and family law: comment on the special issue.

A certified family law practitioner reviews the articles in this special issue and discusses how the research and conceptual discussions in the articles are invaluable to family law professionals. The recognition of the interaction between mental health and family court professionals is essential to strengthen collaboration and more positive outcomes. Some questions are raised about the sampling and generalizability of some of the studies, and there is strong encouragement for further scholarship in these areas and dissemination to family law professionals.