Skip over navigation

Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

The Determination of Child Custody
Joan B. Kelly

Policy Recommendations in Custody Determinations

Recommendations for policy emerge from the accumulating body of divorce and mediation research focusing on children, families, and programs; observations of the shortcomings of the adversarial system in dealing constructively with divorce; and years of thoughtful input from the judges, attorneys, mediators, and mental health professionals who assist families. It is clear that parents and the judicial, legal, and mental health professionals who assist them need reliable, practical information and guidelines about divorce and children to help them make decisions that will promote their children's postdivorce adjustment and well-being. In addition, parents should have available a hierarchy of programs or services that will address their particular needs and conditions, reduce their reliance when possible upon adversarial processes, contain or reduce their conflict, and enable them to settle divorce disputes as early and as efficiently as possible.

Parent Education Programs

Educational programs designed to provide divorcing parents with information regarding the potential effects of conflict and divorce on their children, various custodial and parenting arrangements available, and communication techniques that keep their children out of the middle of conflicts are important. Such programs can be offered through nonprofit agencies, churches, or by the courts. Good resource and training materials integrating written, video, and discussion elements have been developed to ensure balanced, comprehensive programs.77,106,107 It would be optimal if all divorcing parents participated in these brief programs, but participation should be required of all parents disputing custody or access prior to entering mediation or initiating litigation. The increasing number of parents doing their own divorce indicates the need for video orientation programs which provide basic information about court processes, legal rules and entitlements, and community resources available for further assistance. Such programs should be multilingual and provided free of charge by the courts and the bar.

In states offering or mandating custody mediation, orientation sessions should also be mandatory to educate parents about what mediation is and how it works, and about screening procedures and ground rules. Video, written, and verbal information about children and divorce106 and about practical communication and negotiation techniques for parents66,77 should also be included.

Mandatory Mediation

Mediation should be not only widely available but also mandatory as a "first step" for all parents disputing custody and access before continuing adversarial custody proceedings. The vast majority of disputes seen in mandatory mediation involve not custody, but how much time the noncustodial parent, usually the father, will spend with the children and what the pattern of contacts will be. Such disputes are generally more easily settled than custody disputes. However, settlement of issues during the mediation process should never be mandatory. Other contested issues, such as substance abuse allegations or whether a parent's mental state requires supervised visitation, require more time and evaluation. Even with these more difficult issues, mediation is often an effective intervention.40,57

From a public policy standpoint, the advantages of mandatory custody mediation include acceptably high settlement rates, ranging from 50% to 75%, often following one to two hours,40,57,58,60,108 and a much greater likelihood of reaching agreement prior to a court hearing, compared with parents who do not attempt mediation.108 Some mediation settings report handling a greater case load while saving judicial resources and court overhead.60 Further, because parents who participate in mediation more often both report feeling they have "won" in reaching settlement, compared with parents who rely on litigation and view the outcome as producing a winner and a loser,59 the mediation alternative may reduce acrimony and relitigation.

Mandatory mediation in the public sector requires protective policies for those unable or afraid to negotiate on their own behalf, even with preparation of counsel. Feminists have expressed legitimate concern about the effect of domestic violence on women's bargaining abilities, and some advocate that mediation should never be attempted if any history of interspousal violence is alleged.55 Many proponents of mediation take these concerns seriously 109,110 but also remind us that women, particularly those of color and low socioeconomic status, have not been adequately protected or represented in the adversarial system and should not be excluded from mediation if they wish to participate.109 Some argue that mediation may help defuse the rage of an abusive spouse and that effective screening measures, specialized protocols and procedures (including separate sessions and the use of restraining orders), and the readiness to terminate mediation in favor of formal investigations when indicated are critical.90,110,114 In response to feminist criticisms, California adopted legislation addressing feminist concerns, including separate mediation sessions where there is a history of domestic violence, bringing a "support" person into mediation if the party desires, and procedures within court mediation settings designed to ensure the safety of domestic violence victims. Several regional planning coalitions of court mediation personnel, feminists, researchers, and domestic violence specialists have developed protocols for identification, safety, screening, and interviewing.115 There is widespread agreement that effective screening procedures should be instituted in all mandatory mediation programs.111-113

From a policy standpoint, several additional considerations are important in recommending mandatory mediation. It is essential that mediators have specialized, intensive training and experience in divorce and custody matters, in domestic violence assessment, and in divorce mediation. Training and experience as a therapist, evaluator, lawyer, probation officer, or judge does not adequately prepare one to be an effective mediator. Further, settlement rates should never be considered as the sole indicator of the success of a program. Many experienced mediators believe that settlement rates in excess of 85% in custody disputes may reflect administrative or mediator coercion to settle and diminish the likelihood of client self-determination. Serious issues, such as substance abuse, impaired mental capacity, and child neglect and abuse, are often more appropriately resolved in more adversarial proceedings, including custody investigations, judicial settlement conferences, hearings, and trials.

Mediation should also be available for those who seek assistance in developing or changing parenting plans for their children. For parents who are without formal disputes but need information and assistance, a premediation consultation could be beneficial and might prevent conflict escalation. Such consultation services could be provided by courts or agencies in conjunction with educational programs, with backup mediation available for parents requiring dispute resolution services. A hierarchy of services targeted at different levels of parental conflict is likely to be the most effective combination, from both an economic and a parent-child perspective.

Mediation of Financial Disputes

Comprehensive divorce mediation, when provided by skilled, knowledgeable mediators, is more cost-effective than adversarial processes, results in equitable agreements more satisfactory to its participants, produces more compliance, contains conflict, and facilitates more cooperative communication.41,76,98,116,117 Clients in court-connected custody mediation often express the desire for mediators to resolve their support issues as well. Given the increasing number of clients handling their own divorces, mediation services should be available and affordable for settling simple property and support matters. Most states require that custody and financial disputes be settled in separate proceedings. With the adoption, in many states, of child support guidelines that tie the amount of child support to the nonresident parent's time with the child, these two issues have become inextricably linked. The advantage of comprehensive mediation is the ability to explore financial and child-related issues separately on their own merits in one setting, acknowledging their interdependency, but reaching equitable agreements within each sphere.

It should be noted that neither custody mediation nor comprehensive divorce mediation produces significant changes in adult or child adjustment,60,108,117 nor should it be expected to do so, given the brevity and task focus of the process. Other than reaching an agreement with less acrimony and cost, the advantages of mediation are short-term rather than longer lasting and are limited primarily to more positive interactions between and perceptions of the divorcing spouses.108,117

Special Master and Arbitration Programs

A small group of divorcing parents, estimated to be 10% to 15% in number, remain in high conflict after divorce.20,35,118 Members of this chronically litigating group use a disproportionate amount of the court's time and resources, and deplete their own economic resources and energies. Several California jurisdictions have initiated a special master program in an attempt to settle the continuing stream of postdivorce child-rearing disputes presented by this population outside the court.119While some of these parents have a history of serious problems and chaotic functioning,19,118 others of these parents.136 have widely divergent child-rearing goals and values, and disagree about almost everything.

A special master is a hybrid court officer who has the authority to make certain decisions related to parenting and visiting that the parents cannot make themselves. Special masters' decisions and subsequent court orders are subject to judicial review upon appeal of a parent. The majority of special masters are mental health professionals with considerable training and experience in divorce, custody evaluations, child development, parenting issues, and mediation.119,120 Different models of decision making are used by special masters, the most common of which is a mediation/arbitration model. In this model, the special master first attempts to mediate parents' disputes; but, if parents cannot reach agreement in a brief mediation, the special master then prepares a written decision, which can become a court order.

Special masters are generally appointed upon recommendation of the parties' attorneys or judges when parents have a history of repeated litigation and high acrimony, in recognition of their very limited ability to communicate and cooperate about their children. It is recommended that pilot projects which assess different models of decision making for chronically litigating parents and which incorporate education, mediation, and arbitration roles be established and evaluated. Special educational materials for this difficult group of parents, and guidelines for parental behaviors at transition, on the phone, at children's school, and at social events should be developed and evaluated.