Education as a custody outcome improvement strategy

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Parent education

Parent education programs for divorcing parents, mandated in every divorce case involving children, is probably the least controversial reform that has been suggested in the past ten years.

The goal of parent education is to sensitize parents to the impact of divorce-related conflict on children,  and to the damage to children that is done when their parents fight; and to explain ways to minimize the negative impact on children.1 Divorce education could also inform parents about their options, such as joint custody and shared parenting; explain the meanings of terms like legal custody, physical custody and shared parenting; and perhaps even provide some basic information about the legal standard for deciding custody, such as that judges no longer apply a presumption in favor of the mother, the father or the primary caretaker.2 Education programs might also cover the kinds of considerations a parenting plan or settlement agreement should address.

Currently missing from most parenting education programs is information about resources available to attempt reconciliation. Yet, the purpose of no-fault divorce laws was only supposed to be to give individuals greater power over their own relationships, not to discourage couples from trying to remain together. There is no reason in logic or policy that exposure to reconciliation-oriented options should not be included as a component of divorce education programs. In the absence of such a component, divorce education programs are open to the criticism that they have the purpose or effect of encouraging — or even coercing — divorce.3

Parenting educators sometimes strive to discourage parents from asserting parental rights. This is also a noticeable trend among many family law attorneys. The following statement from a past chairperson of the family law section of a bar association appears in an article making the case for mandatory education for divorcing parents:

“We want to pull away from the idea that parents have rights in relation to their children….”4

It is true that irrational insistence on a wide range of both real and imagined “rights” will lead to impasse in mediation, and may be unhealthy behavior on the part of parent. On the other hand, it simply is not true that parents have no rights in relation to their children. Not only do parents have rights, but according to the U.S. Supreme Court, they are rights that are so fundamental as to warrant the highest level of protection under the United States Constitution.5

Telling a divorcing parent that he or she has no rights is telling a parent she is not entitled to provide input to the court about what his or her wishes are as to custody. This does not seem to serve any legitimate interest except possibly a judicial interest in absolute power. That is not a legitimate state interest.

Numerous judicial decisions have held that parents do have the right to have their wishes as to custody taken into consideration. Parent educators should not lie, or be encouraged to lie, to parents. What they should be telling both parents is that their input and opinions about custody issues related to their own children are extremely valuable and important, and that for this reason, they should think very seriously and carefully about them.

Judicial education

Better judicial education is also sometimes suggested as a reform measure, and some efforts have been made to implement that suggestion. Women’s groups and bar associations have done a great deal to educate judges about violence against women. Not many judges, however, are educated in child development and attachment theory. Yet that kind of information and understanding is critical to the ability to make appropriate judgment about what kinds of parenting arrangements are in children’s best interests.6

The results of surveys of judicial attitudes also suggest a need to sensitize judges to stereotypes and prejudices that may cloud a judge’s judgment when making custody determinations. While commendable efforts have been made to sensitize judges to the condition and needs of abused women and working mothers, to date it does not appear that any programs have been initiated, or efforts made, to sensitize judges to their pre-conceived notions about, and in some cases bias and antagonism toward, fathers and abused men.7
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My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:

Purchase The History of Custody Law
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  1. S.S. MCLANAHAN & G.D. SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS AND WHAT HELPS (1994); NATIONAL COMMISSION ON AMERICA’S URBAN FAMILIES, FAMILIES FIRST (1993); James D. Lambert, Postdivorce Father Involvement: Innovations in Child Custody Reform, 3 MICH. FAM. R. (Winter 1997-98)
  2. L. Lehner, Mediation parent education programs in the California family courts, 30 FAM. & CONCILIATION CTS. REV. 207-16.(1992); R.A. Thompson, The role of father after divorce, 4 FUTURE OF CHILDREN 210-235 (1994)
  3. See JUDY PAREJKO, STOLEN VOWS: THE ILLUSION OF NO-FAULT DIVORCE AND THE RISE OF THE AMERICAN DIVORCE INDUSTRY 11 (2002) (recounting that in her experience as a parenting educator, “|t|he fact that one parent didn’t want the divorce—or that one of them had broken the promises they’d made when they were married—these were issues I was supposed to ignore….”)
  4. Cristin Schmitz, “Force Divorcing Parents to Take Courses: Lawyers,” NAT’L POST, 9 July 2001 (quoting Jennifer Cooper.)
  5. Meyer v. State of Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944); Ginsberg v. New York, 390 U.S. 629 (1968); Wisconsin v. Yoder, 406 U.S. 205 (1972); Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Moore v. East Cleveland, 431 U.S. 494 (1977); Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Quilloin v. Walcott, 434 U.S. 246 (1978); Parham v. J. R., 442 U.S. 584 (1979); Santosky v. Kramer, 455 U.S. 745 (1982); Reno v. Flores, 507 U.S. 292 (1993); Washington v. Glucksburg, 521 U.S. 702 (1997); Troxel v. Granville, 530 U.S. 57 (2000)
  6. See Joan B. Kelly, The determination of child custody, 4 FUTURE OF CHILDREN 121-142 (1994). A call is also sometimes made for the cross-education of attorneys and other family law professionals in child development. See, e.g., L.L. Schwartz, Enabling children to win at divorce, 32 FAM. & CONCILIATION CTS. REV. 72-83 (1994).
  7. See Tom James, What Judges Really Think About Fathers: Responses to Court-Commissioned Judicial Bias Surveys, http://tomjameslaw.com/blog/what-judges-really-think-about-fathers-responses-to-court-commissioned-judicial-bias-surveys/

Nonadversarial Models: Parenting Plan Legislation

Nonadversarial models

In most countries, including the United States, court processes are designed for adversaries. A competitive, zero-sum model is used: one party wins something; one party loses what the other wins.

When a couple submits a dispute over custody of their child to a court, it generally will be inclined to deal with it in the same way it deals with all conflicts that are submitted to a court for resolution: It will try to determine a winner and a loser; the winner will be awarded a prize; and the loser will have to pay. The “prize” in a custody case, of course, is a child. To win the prize, the parties will have to compete against each other in a contest to determine which of them is better for the child. In this model, each parent has an incentive to prove the other is a bad parent, or at least a comparatively inferior parent. Since the stakes are high, the parties may be expected to use every possible means at their disposal to do this, so they will bring up – or make up – every fault and shortcoming of the other parent that they possibly can.

Unlike other kinds of court proceedings, in which very few, if any, aspects of the parties’ personal lives are relevant, in a custody war virtually every aspect of the parties’ lives – past, present and future – may be examined, and very often is. In a cruel inversion of 1 Corinthians 13:5 (“keep no record of past wrongs’), the adversary system often will reward the individual who has kept the most thorough record of past wrongs. If parents were not hostile toward each other before they entered into a custody proceeding, they almost certainly will be afterwards. And no matter how the decree is worded, the parties will believe that one of them has been officially declared the better parent, and one has been declared the worse parent.

In many cases, the victorious parent may develop an unhealthy sense of entitlement, privilege and power. The defeated parent, meanwhile, may be expected to resent the other, and either will embark on a quest to right the perceived wrong the court and the other party have committed; or will remove himself completely from the situation. Either way, the child is assured of growing up feeling embattled, guilty, depressed, confused, betrayed, abandoned and angry.1

Recognizing that the adversarial approach to allocating parental rights and responsibilities is a burden on the courts, unhealthy for parents, and detrimental to children’s psychological interests and well-being, some states are beginning to explore alternative methods of dealing with custody issues.2

Parenting plans

Several states have enacted parenting plan legislation.

Parenting plan legislation requires or permits the parties to a custody dispute to detail how they plan to allocate decision-making and care-giving responsibilities between themselves. In a very small number of states, they are mandatory.3 In most states that have adopted this kind of legislation, however, they are voluntary.4

The three main purposes of parenting plan legislation are: (1) to shift the emphasis in custody cases from parental rights to parental responsibilities;5 (2) to involve the parties more directly in their own custody determination;6 and (3) to encourage and promote amicable resolutions of custody disputes without judicial intervention.7

To the extent it requires the parties to answer specific questions about how particular responsibilities are to be allocated between them, parenting plan legislation at least partially achieves the first objective. On the other hand, it does not seem reasonable – or for that matter, necessary — to expect parents to lose interest in preserving and protecting their rights simply because they are also thinking about responsibilities.

Parenting plan legislation also partially achieves the second objective. It does not really take the power to decide custody away from judges and give it to parents, though. Even if the parents reach an agreement that they believe is in their children’s best interests, a court retains the power to reject the parties’ plan and impose its own if the one the parents devise is not close enough to the one the judge believes is ideal for them.

A serious question exists as to whether parenting plan legislation accomplishes the third objective, i.e., whether it really yields more amicable settlements without judicial intervention. Achievement of this goal requires an assumption that parents are always motivated by a desire to act in their children’s best interests. That assumption may not be realistic. For example, experience teaches that when child support is inversely correlated with the custody designation, as it is in many states, each party will be motivated by a desire to acquire that designation in order to be the one entitled to receive support instead of being the one required to pay.

Even if the parties are able to agree on that issue, they will still have competing financial motivations. If child support is calculated on the basis of the proportion of time each parent has with the child, as it is in several states, then one party will have an incentive to seek more parenting time for herself in a parenting plan in order to attain a greater amount of child support, and the other will have an incentive to fight for more parenting time for himself in a parenting plan in order to reduce the amount of child support he has to pay.

Even if parents are able to put their self-interests aside, parenting plan legislation does nothing to help people who have reasonable disagreements about how their children should be raised and how time with a child should be structured between the parents.8 The fact that two people are committed to acting in their child’s best interest does not necessarily mean that they will be able to agree what that is.

Another defect with parenting plan legislation is that, in most states where it has been enacted anyway, it is merely permissive, not mandatory. So long as submission of a parenting plan is not mandatory, such legislation really does nothing to change the existing status quo. Parents have always been free to work out settlement agreements between themselves. The vast majority of custody cases were settled by agreement even before parenting plan legislation was enacted. There is no evidence that parenting plan legislation has had any effect on settlement patterns.9 If submission of a parenting plan is voluntary, only those parents who are already disposed to settle their custody dispute will be likely to utilize a parenting plan. Those who are not so disposed will continue to require a judicial determination. Unless the submission of parenting plans is made mandatory, such legislation really does not accomplish much other than add more detail to what must be included in the settlement agreements that are reached by those parents who are already disposed to settle their cases anyway.

Parenting plan legislation has also been criticized on the basis that many, if not most, parents do not know what kinds of custody or shared parenting options are available to them, or what kinds of arrangements are most beneficial to their children.10 Many laypersons assume that the maternal preference is still in force; or they do not understand the difference between custody and legal custody, or between legal and physical custody; or they have not heard or do not know much about newer options like joint custody and shared parenting. As may be expected, most laypersons who are not adequately informed on these matters will designate the mother as the sole custodial and residential parent simply because they believe that is how it has to be, or that fathers have no real legal rights in this area.11 To be beneficial for children, parenting plan legislation would need to be accompanied by a parent education program and, arguably, at least some involvement with a competent, unbiased mediator.12

A final criticism of parenting plan legislation is that it does not go far enough. If either party believes he or she is likely to receive a more favorable award in court than what the other parent is willing to give, then that party will likely opt for a decision by a judge. If the legal standard, or the way that courts apply it, is unfair, then parenting plan negotiations and the results they yield will be, too. Parenting plan legislation will work in a way that is fair and reasonable, and will operate in children’s best interests only if custody law, both in theory and in practice, is fair and reasonable, and operates in the best interests of children.

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My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:

Purchase The History of Custody Law
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  1. Thomas J. Walsh, In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes, 85 MARQ. L. REV. 929, 957 (2002) (recognizing that “laws can create tragic dynamics for the children of divorcing couples.”)
  2. Mothers, fathers, children, attorneys and judges appear to be in agreement, on the whole, that the adversarial system is not a satisfactory method of deciding custody. See ROBERT E. EMERY, RENEGOTIATING FAMILY RELATIONSHIPS (1994); FRANK F. FURSTENBERG & ANDREW J. CHERLIN, DIVIDED FAMILIES (1991); Francis J. Catania, Jr., Accounting to Ourselves for Ourselves: An Analysis of Adjudication in the Resolution of Child Custody Disputes, 71 NEB. L. REV. 1228 (1992); Glenn Stone & Patrick C. McKenry, Nonresidential Father Involvement: A Test of a Mid-Range Theory, 159 J. GENETIC PSYCHOL. 313-36 (1998).
  3. See, e.g., WASH. REV. CODE § 26.09.181 (2011).
  4. See, e.g., MINN. STAT. § 518.1705 (2012) (permitting, but not requiring parties to submit a parenting plan; and authorizing but not requiring court to create one for them if they cannot agree; cf. WIS. STAT. § 767.41 (2011) (requiring each party to submit a parenting plan if the case is not settled or resolved through mediation); )
  5. C. Buehler & J.M. Gerard, Divorce law in the United States: A focus on child custody, 44 FAM. REL. 439-458 (1995); K. Czapanskiy, Volunteers and draftees: The struggle for parental equality, 38 UCLA L. REV. 1415-81 (1991); L.S. Hallmark, Chairperson’s message, 24 MICH. FAM. L.J. 1-3 (April 1997); R. Tompkins, Parenting Plans: A concept whose time has come, 33 FAM. & CONCILIATION CTS. REV. 286-97 (1997)
  6. Heather Crosby, The Irretrievable Breakdown of the Child — Minnesota’s Move Toward Parenting Plans, 21 HAMLINE J. PUB. L. & POL’Y 489, 509 (2000); Walsh, supra note 1 at 957
  7. Walsh, supra note 1 at 957. Another purpose of parenting plan legislation is to produce more fact-specific, individualized custody decisions. Jane W. Ellis, Plans, Protections, and Professional Intervention: Innovations in Divorce Custody Reform and the Role of Legal Professionals, 24 U. MICH. J.L. REFORM 65, 70 n.10 (1990); cf. Audio Tape: Parenting Plans, 2000: Hearings on H.F. 3311 Before the House Civil Law Committee, 81st Leg., 2000 Reg. Sess., Tape 1, Side B (March 2, 2000) (statement of Rep. Andy Dawkins) (describing parenting plan legislation as having five goals: (1) reduce the number of custody battles; (2) eliminate the wounds caused by custody battles; (3) improve future relations between the parties; (4) maximize the involvement of both parents; and (5) make families healthier.
  8. Walsh, supra note 1 at 972 (observing that parenting plan legislation “fails to recognize that parents can oftentimes have a genuine and reasonable disagreement about certain issues involving the raising of their children” and that “|t|hese ‘reasonable disagreement’ situations may not lend themselves to solutions with a parenting plan.”)
  9. Id. (observing that “most couples who are disposed to reaching agreements with their spouse were already doing so without parenting plans.”)
  10. See Joan B. Kelly, Developing and implementing post-divorce parenting plans: Does the forum make a difference? in NONRESIDENTIAL PARENTING: NEW VISTAS IN FAMILY LIVING 136-55 (C. E. Depner & J. H. Bray, eds., 1993)
  11. J.W. Ellis, Plans, protections, and professional intervention: Innovations in divorce custody reform and the role of legal professionals, 24 U. MICH. J.L. REF. 65-188 (1990)
  12. Kelly, supra note 10; Joan B. Kelly, The determination of child custody, 4 FUTURE OF CHILDREN 121-142 (1994)

New Terminology

Terminology

Custody law traditionally has been conceived as a contest for a prize. The winner of the contest is “awarded” the prize of custody, i.e., the right to continue parenting a couple’s children, and to have the final say in all matters concerning the child. The loser is consigned to a secondary role, that of an occasional visitor. Many noncustodial parents, having been marginalized in this way, bitterly resent the term visitation. As one writer put it: “The words ‘custody’ and ‘visitation’ belong to prisons and hospitals.”1 Feeling as if they have been, or are being, excised from their children’s lives, some parents may give up trying to be involved in the parenting of their children.2

Theorizing that removing the stigma of losing custody and of being demoted from a parent to a “visitor” would reverse the process of driving fathers out of their children’s lives, suggestions have been made to change the terminology in a way that emphasizes that a parent who loses custody nevertheless remains a parent. Accordingly, one type of proposal that has been gaining a lot of traction is to discontinue the use of terms like custody and visitation, and instead use terms with fewer negative connotations, such as decision-making responsibility, residential responsibility and parenting time.3

While terminological changes undoubtedly are beneficial in terms of removing the stigma of losing custody (and the loss of parental authority and respect it entails), they are not a complete solution. They do not alter the basis on which residential responsibility and parenting time are allocated between the parties. They do not make the legal standards clearer or more responsive to changing conceptions of male and female parenting roles, or to the needs of children for a meaningful relationship with both parents. If these kinds of things are goals, then something more than terminological changes alone will be needed.

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My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:

Amazon.com
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  1. Marilyn Gardner, Yours, Mine, Then Yours Again, Christian Sci. Monitor 13 (May 3, 2006) (quoting a shared parenting supporter)
  2. See Frank F. Furstenberg et al., The Life Course of Children of Divorce: Marital Disruption and Parental Contact, 48 Am. Soc. Rev. 656, 663-64 (1983) (finding that two years after a divorce, half of noncustodial fathers have virtually no contact with their children at all); see also David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem 22 (1995); Mavis Hetherington & John Kelly, For Better or for Worse: Divorce Reconsidered 118-21 (2002); Cynthia R. Mabry, Disappearing Acts: Encouraging Fathers To Reappear for their Children, 7 J.L. & Fam. Stud. 111, 114-18 (2005); Solangel Maldonado, Beyond Economic Fatherhood: Encouraging Divorced Fathers To Parent, 153 U. Pa. L. Rev. 921, 946-47 (2005); David D. Meyer, The Constitutional Rights of Non-Custodial Parents, 35 Hofstra L. Rev. 1461, 1469-70 (2006); Judith A. Seltzer, Relationships Between Fathers and Children Who Live Apart: The Father’s Role After Separation, 53 J. Marriage & Fam. 79, 85 (1991).
  3. Peter V. Rother, Balancing Custody Issues: Minnesota’s New Parenting Plan Statute, 57 Minn. Bench & B. 28 (Dec. 2000) (noting the reason for allowing parties to use terms other than custody and visitation in a parenting plan is that those concepts represent possession and control.)