Defining terms: What does equal custody mean?

Equal_sign

Equality, I spoke the word as if a wedding vow,
But I was so much older then; I’m younger than that now.

–Bob Dylan (“My Back Pages”)

 

Debates about custody law reform typically are framed as disagreements about whether the law should serve the goal of parents’ rights, on one hand, or the best interests of children, on the other. Parents’ rights advocates vie for recognition of the right to be treated as equals under the law. Opponents contend the law should ignore what parents want, and focus instead on children’s interests and what best serves them, apparently assuming that recognizing parental rights does not.

Of course, this is a false dichotomy. It is entirely possible that it could be in children’s best interests for society to give recognition to parental rights. I have made that argument elsewhere.1 The belief that there is some inherent conflict between children’s interests and parents’ rights stems from a misunderstanding of what a “right” is.

There are a lot of misunderstandings about what “equality” means, too. A first step in any movement either toward or away from equality, therefore, should be to define the term. If it means different things, then the first step in any discussion about it should be to identify which meaning of the term is being employed in the discussion.

The multiple meanings of equality

According to Webster’s, “equal” can mean four different things:

(1) equivalency of quantity, quality, etc.;
(2) regarding or affecting all things in the same way, meaning that the things have the same status with respect to how they are regarded or affected; e.g., equal opportunity;
(3) free from extremes; tranquil; or
(4) capable of meeting the requirements of a task.

Only the first two definitions are pertinent to discussions of custody law.

The first step in any discussion of equality in the context of custody law reform, then, must be to clarify which meaning of the term is being used: equivalency of quantity, quality, etc., or being regarded by the law as having the same status.

Equivalency vs. equal opportunity in the custody context

As applied in the context of custody law, the dual meanings of equality would be:

(1) Equality of the quantity and quality of custody each parent possesses;
(2) Equality of status with respect to the right to possess and enforce custody rights (entailing a right not to be subjected to discrimination on the basis of sex.)

Put more simply, the difference is between equal time and decision-making power, on one hand, and an equal right to ask a court for (and to have a court make an award of) sole custody, on the other.

If breath were helium, then the quantity of breath that has been expended in debates over “equal” custody that have gotten nowhere because the participants were not talking about the same thing would be adequate to power a fleet of zeppelins for many centuries.

Legal vs. physical custody

In discussions about “equal custody,” it is also important to be clear about which meaning of the second half of the phrase is intended. Custody can mean two different things in family law. It can mean the legal authority to make major decisions about a child’s upbringing (sometimes called “legal custody,” or “decision-making responsibility”); or it can mean physical possession of a child (sometimes called “physical custody” or “residential responsibility.”)

Unfortunately, terminology is not consistent across states. Depending on the state, the word custody, standing alone, may refer only to legal custody; or it may refer only to physical custody; or it may refer to both legal and physical custody. If the Commission on Uniform State Laws were to issue a new uniform law on custody standards, a clear definition of the term would be a good thing to consider including in it.

Different meanings of “equal legal custody”

Given the two different meanings of equal, it should be obvious that the phrase equal legal custody is susceptible to two fundamentally different interpretations. It could mean giving each parent an equal amount of decision-making authority, or it could mean giving each parent an equal right to ask a court for an award of sole decision-making authority.

Equal opportunity, in the context of legal custody, would mean the equal right of fathers and mothers to earn decision-making rights, regardless of their sex. The decision-making rights so earned, however, could differ greatly in terms of quality or quantity from those earned by the other parent. So long as it is not based on sex, a parent could legitimately be awarded sole legal custody under an equal-opportunity model without violating anyone’s rights. An equivalency model, by contrast, would favor a joint legal custody outcome.

Although some people use the phrase joint legal custody in the equal-opportunity sense (arguing, for example, that it means courts should not discriminate against fathers in custody cases), I suspect most people who use it intend the equivalency sense.

Assuming it is being used in the equivalency sense, it then becomes necessary to define what equivalency means in the context of legal custody. Does the desired equality relate to the quantity of decision-making authority, or to the quality of it? Will a law giving each parent “equal legal custody” mean that each parent is entitled to make as many child-rearing decisions as the other parent does, or will it mean that the parents are to make decisions jointly with neither one having a superior right to “make the call” in cases where they are not in agreement?

Different meanings of “equal physical custody”

Similar considerations apply to the phrase equal physical custody.

To begin with, it could mean equivalency of the amount or quality of custody each parent has. Alternatively, it could refer to an equal status under the law, which, in turn, would connote equal opportunity under the law, not necessarily saying anything about amounts or quality of time.

Equality of status, in the context of physical custody, would mean the equal right of fathers and mothers to earn rights to physical possession of children, and to have courts decide the issue without discriminating on the basis of sex. The amount or quality of the time so earned, however, could differ greatly between the parents. Under an equal-opportunity model, a court could legitimately award sole physical custody to one parent alone,  so long as it did not do so on the basis of sex. Such an award would be an equal rights violation only if the term equal is being used in the equivalency sense, not the equal-status/opportunity sense.

Most states that have adopted equality-oriented legislation in the context of physical custody have adopted the equality-of-status model rather than an equivalency model. For example, the Minnesota legislature, in Minn. Stat. § 518.003 (2014) has defined “joint physical custody” to mean only that “the routine daily care and control and the residence of the child is structured between the parties.” Nothing is specified about the amount of time each parent has with the child, much less about whether it must be equal or not. Minnesota has also enacted a statute, Minn. Stat. § 518.17 (2014) prohibiting courts from deciding custody solely on the basis of sex. These statutes clearly adopt the equality-of-status concept of equality, falling short of addressing equivalency with respect to quantity or quality.

In discussions about whether a right to equality in the equivalency sense should be made a part of the law of physical custody, then, the first issue that should be addressed is what equivalency means in the context of physical custody. Does the desired equality relate to the quantity of time each parent gets, or to the quality of the physical custody each parent gets?

Note that the definition the Minnesota legislature has provided identifies two distinct aspects of physical custody: (1) residence; and (2) “routine daily care and control.” The first part is fairly straightforward, but what does “routine daily care and control” mean? Remembering that legal custody means the right to make major decisions about child-rearing, “routine daily care and control” logically must be referring to a right to make minor child-rearing decisions. Examples might include such things as what the child will be served for breakfast, lunch and dinner; what style of clothing will be selected for the child; whether the child will be required to brush his teeth before going to bed; and so on.

Even when the equivalency sense of equality is intended, then, equal physical custody can mean different things. It can mean equal time; or it can mean equality of decision-making authority (or status) with respect to ordinary, every-day child-rearing decisions, during the time a child spends with the custodian; or it can mean both.

Those with an interest in moving custody law toward “equal physical custody” in the equivalency sense will need to consider whether it is to mean that each parent is entitled to spend as much time with the child as the other parent does, or whether it is to mean that neither parent has a superior right to make ordinary, everyday child-rearing decisions even while the child is in the other parent’s care. Or will it mean both things?

Why all this boring junk about definitions matters

It’s a fair question. The best answer is that being clear about definitions can help people avoid wasting a lot of time in pointless, unproductive debates.

As helpful as defining terms is in debates, it is absolutely critical when drafting legislation. Failing to be clear about the meanings of the terms used can have unintended consequences. In some cases it may lead to disastrous judicial interpretations.

Take the phrase equal physical custody. A court that is hostile to the idea of making an award of an equal amount of time to each parent could construe this term narrowly to refer merely to equal status as physical custodians. Under this interpretation, each parent would have the equal right to be called a physical custodian (as distinguished from a “visitor,” for example.) Each parent would also have an equal right to make his or her own decisions about the ordinary, everyday care of children while they are in his or her care without being required to take directions from the other parent. The court could then go on to hold that these things signify nothing about the amount of time each parent is entitled to spend with the children. If equality with respect to quantity of time is the desired outcome, then that should be made very clear in the draft legislation.

Conversely, law reform proposals that define physical custody solely in quantitative terms, or that are focused exclusively on ensuring that courts award “equal time” to both parents, run the risk of being construed as authorizing, or even encouraging, unequal awards of physical custodial status. Laws in some states require or encourage courts to strive for “substantial” or even “substantially equal” amounts of time for both parents. Courts in these states have not construed such requirements as necessitating awards of joint physical custody. A court can comply with a requirement of this kind by granting one parent sole physical custody, and then granting the other parent a “substantial” amount of visitation.

In a related vein, merely changing the statutory definition of “joint physical custody” to mean an equal division of time will not necessarily ensure that a court that orders a substantially equal division of time will be obliged to call the arrangement joint physical custody. It is not unusual for a court to name one parent the sole physical custodian while at the same time awarding 40%, 50%, or even a majority of the time to the noncustodial “visitor” parent.

It is always tempting to try changing an existing statutory definition of a term to get it to do more work than it currently does. For example, calls are often made to change a state’s definition of “joint physical custody” to make it mean an “equal or substantially equal division of time.” This may seem like a good way to prevent judges from nominally awarding “joint physical custody” to both parents while still only awarding 14% of the time to the father. Redefining joint physical custody in purely quantitative terms, however, can have some serious unexpected consequences.

To begin with, redefining physical custody in purely quantitative terms implies that the qualitative aspects of the former definition are no longer applicable. If, for example, Minnesota’s statutory definition of joint physical custody were changed to say “an equal or substantially equal amount of time,” a court could reasonable construe the amendment to express a legislative intention that a joint physical custodian is no longer to have the authority to make ordinary, everyday decisions about child-rearing while the children are in his or her care. A court could reasonably infer a legislative intent to require joint physicians to confer with each other about everything, even to the extent of requiring the parents to meet and confer with each other about the brand of toothpaste their children should use. Evidence that the parents are not willing or able to go to that extreme could then necessitate a finding that the presumption in favor of joint physical custody is rebutted and the court should therefore award sole physical custody to one or the other parent.

Another unintended consequence of defining joint physical custody to mean equal time is that courts would then have to deny joint physical custody to parents in those cases where an exactly equal division of time is not feasible. This could happen, for example, when the parties live so far away from each other that their children would have to enroll in two different schools in order for each parent to get an exactly equal amount of time with them. It could also happen in situations where the parents do not desire an exactly equal division of time, whether due to work schedules or for some other reason.

If a statute defines joint physical custody to mean an equal division of time, but an equal division is not feasible, then a court would need to either issue an unworkable order with which the parties cannot comply, or order sole custody instead. In most cases, the latter option would probably be the one selected.

A statutory definition of joint physical custody as an equal division of time would also significantly limit a court’s power to order joint physical custody when parents wish to share joint physical custody but do not want an exactly equal division of time. For example, if John and Jane Doe amicably agree to joint physical custody, agreeing that John will have the children for 4,382 hours of the year, while Jane will have them for 4,384 hours of the year, then a judge complying with the statutory definition would be required to name one of them a sole custodian instead of awarding the couple joint physical custody.

Rather than re-defining joint physical custody in purely quantitative terms (a la “equal or substantially equal time”), the better approach (assuming equal status and substantially equal time are the goals) would be to retain a qualitative component in the definition; or, if a statute does not already contain a qualitative component, then to add one.

Another option would be to adopt (or retain, as the case may be) an equality-of-status type of definition of joint physical custody or shared residential responsibility, while addressing the question of quantity of time separately.

This could be accomplished in Minnesota, for example, by retaining the existing definition of joint physical custody, while addressing in a different provision the amount of time each parent should be awarded.

Conclusion

Laws and law reform proposals having equality in custody proceedings as their objective should make clear whether the equality sought is equality of status (equal opportunity; freedom from discrimination); equivalence of quantity and/or quality (equal time, equal decision-making power); or both.

When equality in the equivalence sense is the objective, further care should be taken to specify the intended object of equivalence. Is the intent to talk about equivalence with respect to the quantity of time a parent spends with children, or equivalence with respect to quality, such as equal authority to make decisions about upbringing? If it is about equal decision-making authority, does it involve all decisions or only major ones, and does the equivalency relate to the quantity of decisions or to the quality of the authority?

Carelessly drafted legislation can have serious unintended consequences. Therefore, it is imperative to think very carefully about even the most basic things, like what the words equal and custody mean.

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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. Tom James, Parent, child and state: Choice and interest theories revisited (2013), available at https://www.academia.edu/10132229/Parent_Child_and_State_Choice_and_Interest_Theories_Revisited

Toward equal and/or shared parenting

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Currently, most custody law reform efforts aim to either establish or refine a shared parenting paradigm (as distinguished from single parenting, which is still the most prevalent post-divorce paradigm.)

“Shared parenting” can mean different things. It can simply mean sharing decision-making about a child; or it can mean sharing or dividing up the time a child spends with a parent. It can also mean a combination of both of these things.

Some people understand it to mean equal — or at the very least, substantial — amounts of time for each parent. Share, however, does not connote anything about quantity. A person who gives other people pieces of his pie is said to be “sharing” whether he gives all, half, or only 1% of it to others. For clarity, therefore, it is helpful to distinguish the concept of shared custody from equal custody. Reforms directed at establishing shared custody (as distinguished from sole custody) as the fundamental paradigm for post-divorce families may properly be called “shared parenting” reforms. Shared parenting reforms may be further classified according to the desired specifications for allocating rights and responsibilities between two (or more) people. Reforms directed at refining the shared parenting paradigm to ensure that each parent gets an equal or substantially equal set of rights and/or time to spend with a child would properly be called “equal shared parenting” reforms.

The formal term for shared decision-making rights and responsibilities is joint legal custody. Joint physical custody refers to sharing of the physical possession and care of a child. In a post-divorce situation, joint physical custody is almost always implemented by dividing up periods of time during which each parent, separately, may have the physical care and possession of the child.

Although a growing number of states are moving toward using the “shared parenting” terminology in their statutes, many still use joint custody, either instead of or in addition to shared parenting.

Many states have adopted or are moving toward a rule favoring joint legal custody, when the contest is between parents. Some movement is also being made toward joint physical custody, but that is occurring at a much, much slower pace.

As readers of my book, The History of Custody Law1 know, a strong preference for awarding mothers sole custody of children has been present in the law since the beginning of recorded history. Millennia of precedent and tradition are not often easy to change.

The turbulent civil rights movement of the 1950’s and 1960’s led to major law reform measures in the 1960’s and 1970’s aimed at ensuring that all citizens will be treated alike — that is to say, as equals under the law — regardless of race or sex. The maternal preference doctrine, however, had acquired so much momentum over the many centuries it has existed in the law that it withstood even this. For example, in 1972 the Maryland Court of Appeals declared:

The maternal tie is so primordial that it should not be lightly severed or attenuated. The appreciation of the visceral bond between mother and child will always be placed upon the balance scales, and all else being equal or nearly so, will tilt them.2

Yes, you read the date of that decision right: 1972. Not 1872.

Perhaps recognizing the inconsistency between a preference for mothers in custody cases, on one hand, and women’s demands for gender-blind laws, on the other – or at least being able to see what a movement toward equality could lead to — Joseph Goldstein and Albert Solnit teamed up with Sigmund Freud’s daughter, Anna Freud, in the 1970’s to try to come up with a scientific-sounding justification for maintaining the status quo. Their efforts resulted in the publication of a book, Beyond the Best Interests of the Child.3 It espoused a psychoanalytic approach to determining what is in a child’s best interests, arguing that a single primary attachment figure is critical to healthy child development. Postulating that the mother is the first person children attach to, the conclusion that mothers should be awarded sole custody of children seemed inescapable.

There are major gaps and holes in their argument, however. The most significant of these is the fact that children are capable of forming attachments (and do, in fact, form attachments) to more than one person. For example, researchers H. Rudolph Schaffer and Peggy E. Emerson found that from birth to three months of age, babies respond and attach equally to any caregiver; between four and nine months, a baby tends to have a primary attachment to one person, but also maintains secondary attachments to others; and by nine months babies form multiple attachments. In addition, they found that attachment correlates closely with the person who responds most accurately to the baby’s needs and desires, not the person who spends the most time with the baby. Further, they reported that at eighteen months, a child’s main attachment figure was the mother for only about half of the children studied, and the father was the main attachment figure for nearly all the rest. Finally – and contrary to Freud’s theory — they found that the most important factor in forming attachments is not who feeds and diapers a child, but who plays and communicates with her.4 In many families, that would be the father.

The findings of that research study were published in 1964. Since then, there has been a plethora of research confirming that children can and do form multiple attachments beginning at a very early age, and that there is no valid scientific basis for a belief that multiple attachments impair healthy child development.

Although the arguments propounded by Freud and her colleagues have been debunked, courts and other policy-makers, to this day, continue to cite the work as a justification for preferring sole physical custody over joint physical custody. The momentum generated by millennia of tradition can make it very difficult to effect fundamental changes in the law.

The next few blog posts on the subject of custody law reform, to the extent there are any, will discuss reform proposals that attempt to do just that.

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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. TOM JAMES, THE HISTORY OF CUSTODY LAW (2014)
  2. Kirstukas v. Kirstukas, 286 A.2d 535 (Md. Ct. App. 1972)
  3. JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD (1973).
  4. H. Rudolph Schaffer and Peggy E. Emerson The Development of Social Attachments in Infancy, 29 MONOGRAPHS OF THE SOC’Y FOR RES. IN CHILD DEV. no. 94 (1964)

Trademark Law: The “Use in Commerce” Requirement

(promotional poster for "The Blob," Paramount Pictures, 1958)

(promotional poster for “The Blob,” Paramount Pictures, 1958)

You’ve just come up with “Sonic Protoplasm” or some other great name for your band. A trademark search turns up no confusingly similar mark that is already being used by someone else. Accordingly, you set up a web site and start advertising the services you offer under that name. You then find an online trademark service that keeps costs low by dealing in volume. The firm says it has processed thousands of trademark applications so you figure it must be good.

Everything goes according to plan, and a year later two pieces of good news arrive in your mail: a trademark registration certificate from the USPTO and a notice that your band has qualified to participate in a “battle of the bands” concert.

You arrive at the forum on the day of the concert, and you can hear the crowd going wild inside for the band that is currently onstage. You ask an audience member which band is performing, and he answers, “Sonic Protoplasm, man!” When it’s your band’s turn to perform, you are booed off the stage for trying to trade on the success of the “real” Sonic Protoplasm. Worse, when you return home, you are served with petitions to cancel your registration and to permanently enjoin you from using that name.

Eventually, you find yourself in the federal circuit court of appeals, losing your case. You’re told the problem is that you failed to satisfy the “use in commerce” requirement. Federal trademark registration only protects marks that are “used in commerce.” 15 U.S.C. § 1051(a)(1).

It is true that under the Lanham Act, a service mark is considered to be “used in commerce” when it is displayed in the sale or advertising of services. Creating a web site to showcase and advertise the services you offer, and using the new name on the site, is one way to satisfy this requirement.

But that is only the first part of the “use in commerce” requirement. In addition to actually using the name, you must also actually render the services so advertised. 15 U.S.C. § 1127. If you have not actually started rendering the advertised service by the time you file your trademark application, the registration that is issued to you is not valid. It is subject to cancellation at any time, and it will not necessarily protect you against a competitor’s claim of infringement.

There is one exception to this rule: You may file a trademark application on the basis of an intent to use the mark in the future, rather than actual use. If you file this kind of application, then you have six months from the time you apply (plus any extensions you request and are granted) to start using the mark. If you do not file the requisite statement of use and specimens within that time, then federal trademark protection is lost.

These rules formed the basis for the recent federal circuit court of appeals decision in Couture v. Playdom, Inc. (No. 2014-1480, March 2, 2015.) David Couture had filed an application to register the mark PLAYDOM for entertainment and educational services. To demonstrate use in commerce, he submitted a screen shot of his web site advertising the services. He did not actually begin providing services, however, until later. In the meantime, Playdom, Inc. filed an application for the same mark. Playdom, Inc. successfully petitioned to cancel Couture’s registration of the mark because Couture had not satisfied both prongs of the “use in commerce” requirement.

Couture argued that he should have been permitted to amend his original application from one based on use to one based on intent to use. A petition to change the basis for a trademark registration application, however, must be filed before the issuance of the registration. TMEP § 806.03(j). He had not done that.

The trademark registration process may seem simple, but there are many traps for the unwary. In the immortal words of Sgt. Phil Esterhaus, “Be careful out there.”

(Note: “Be careful out there” is a protected trademark for workmen’s compensation claim services — USPTO ser. no. 77498935 — but not for blog articles.)

Mediation

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Mediation is a dispute resolution process grounded in communication and discussion rather than the presentation and weighing of evidence. It involves getting the parties to a dispute together with a neutral third party to discuss the issues and try to come up with an arrangement of rights and obligations that is acceptable to all of the parties to the mediation. It may be used either as an alternative to litigation or in conjunction with it

Mediation vs. arbitration

Both mediation and arbitration involve the use of a neutral third party. The neutral’s role in mediation, however, differs significantly from the neutral’s role in an arbitration proceeding.

An arbitrator’s role is much like that of a judge. He listens to each party’s arguments; may consider documents or evidence they present to him; and then makes a decision. The proceeding is much like a trial, except that the procedural and evidentiary rules typically are more relaxed.

A mediator, on the other hand, does not make a decision for the parties. If the mediation is successful, the parties themselves reach an agreement. If there is no agreement, then they must find some other way (typically litigation in court) to resolve their dispute.

Styles of mediation

There are three basic styles of mediation: evaluative, facilitative and  transformative.

An evaluative mediator assesses the strengths and weaknesses of  each participant’s position, and may attempt to persuade the person with the weaker position to capitulate or at least make a greater concession that he might otherwise have been inclined to make. Judges, referees, and arbitrators who become mediators tend to adopt the evaluative style.

A facilitative mediator strives to remain neutral about the relative strengths and weaknesses of each participant’s position. Her primary functions are to ask questions to ascertain each party’s real interests, and then brainstorm with them to come up with ideas about how best to further those interests. Most family law mediators who are not judges or former judges use this approach.

Transformative mediation seeks to alter the way the parties think about the dispute and how they relate to each other. This approach is most often taken by mediators with a background in psychology or counseling.

Although most mediators tend to favor one or another of these styles, it is not uncommon for them to use different approaches at different times, or to use a combination of styles.

Benefits of mediation          

Mediation is intended to promote self-determination, reduce conflict, encourage cooperation and promote amicable resolutions without judicial intervention.1 By removing them from the adversarial court system, it may be easier for them to cooperate with each other toward a solution that benefits their children. It may also yield an outcome that is more satisfactory to each of them than a judicial determination would be.

The hope of mediation is that it will set divorcing couples on a course toward a more positive post-divorce relationship.2 Additionally, because it is expected to engender in both parents a greater sense of involvement and influence in their children’s lives, it is believed to produce more voluntary compliance with parental obligations, including child support.3 There is some evidence of a correlation between mediated custody disputes and greater involvement of both parents with their children post-divorce.

Mediation has also been shown to reduce relitigation (returns to court to resolve post-decree issues)4 and to save judicial time and resources.5

Imbalances of power

Mediation is successful in many cases. Custody dispute settlement rates are estimated to be as high as 75%.6 It may not be a viable option in some circumstances, however. If domestic abuse has occurred, or if there are allegations of domestic abuse, it may not be feasible or safe to have the parties in physical proximity to each other. Even if it were feasible and safe to do so, the process will not be a fair one if there is an imbalance of power. A sensible mediation requirement should provide an exemption for cases in which a party has been, or may be, a victim of domestic abuse.7

In most states, either party has the absolute power to terminate the process at any time for any reason, or for no reason at all. If pressure is exerted on a party to continue mediating when he or she does not want to, then the resulting agreement will be one procured under duress, not voluntarily. This is why mandatory mediation legislation can only require parties to “attempt” mediation. To circumvent a mediation mandate, a party need only attend an initial session (to demonstrate a “try” at mediation) and then refuse to continue with it after that.

It is because of this feature that another kind of imbalance of power has the potential to undermine the utility of mediation. A person who is ordered into mediation may be expected to evaluate whether s/he is likely to get more from a judge than what the other party is willing to cede in mediation. If a greater personal benefit is expected from a judge, then there will be little or no incentive to continue with mediation. Instead, the one in whose favor judicial bias is known or believed to operate will have a strong incentive to terminate the mediation whenever she feels she is not getting as much in mediation as she could get from a judge. If, for example, a woman or her attorney believes the judge assigned to the case is predisposed to give custody of children to women rather than to men, or prefers sole maternal custody over joint custody, she will wield great power during negotiations, merely needing to threaten to “take it to the judge” to get a concession of custody or whatever else she may want.

Should mediation be mandatory in every case?

Mediation can be an excellent method of resolving disputes, and many states now authorize courts to order the parties to a custody proceeding to try it. A number of states are considering making mediation of custody and parenting time issues mandatory. Several already do.

Mediation may not work when there is an unequal balance of power, however. Accordingly, it may not be advisable in cases where domestic abuse has occurred between the parties.

Mediation also will not work properly if it is instituted against the backdrop of a court system in which judges are known or believed to be biased in favor of one or another class of parents on the basis of sex.

If either of these conditions are present, the outcome of mediation almost certainly will be unfair.

Because mandatory mediation laws are easily circumvented, a state might consider adding to its statutory scheme a provision calling for the imposition of sanctions against a party who terminates or refuses to participate in mediation without good cause. For this purpose, “good cause” might include the fact that domestic violence has occurred between the parties. The fact that a party anticipates getting a more favorable result from a judge should not be considered “good cause” for refusing or terminating mediation.
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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. See generally R.E. EMERY, RENEGOTIATING FAMILY RELATIONSHIPS: DIVORCE, CHILD CUSTODY, AND MEDIATION (1994); R.E. Emery, Divorce mediation: Negotiating agreements and renegotiating relationships, 44 Fam. Rel.. 377-83 (1994); R.E. Emery, S. Matthews & M.M. Wyer, Child custody mediation and litigation: Further evidence on the differing view of fathers and mothers, 59 J. Consulting & Clinical Psychol. 410-18 (1991).
  2. EMERY, supra note 1; J.A. Arditti, Differences between fathers with joint custody and noncustodial fathers, 62 Am. J. Orthopsychiatry 186-195 (1992); J.R. Dudley, The consequences of divorce proceedings for divorced fathers. 14 J. Divorce 171-193 (1991); Emery, supra note 1; Emery, Matthews & Wyer, supra note 1.
  3. S.L. Braver et. al., A Longitudinal study of noncustodial parents: Parents without children, 7 J. Fam. Psychol. 9-23 (1993)
  4. EMERY, supra note 1; E.E. Maccoby & R.H. Mnookin, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY (1992).
  5. J.A. Arditti & M. Kelly, Fathers’ perspectives of their co-parental relationships postdivorce: Implications for family practice and legal reform, 43 Fam. Rel. 61-67 (1994)
  6. EMERY, supra note 1; Emery, Matthews & Wyer, supra note 1. The quoted success rate relates to the percentage of custody disputes that conclude with a mediated custody agreement. It has been pointed out that the modern objective of mediation seems to be to make divorce more amicable and palatable to the parties, not reconciliation. Helen Alvare, Types and Styles of Family Proceedings, Report of the United States to the XII World Congress, 2003 Int’l  Ass’n Proc. L. 1, 14. There does not appear to be any cogent reason that conciliation could not be made part of the agenda of mediation, or at least discussed as a potential alternative during mediation.
  7. But cf. C. Depner, K. Cannata & M. Simon, Building a uniform statistical reporting system: A snapshot of California family court services, 30 Fam. & Conciliation Cts. Rev. 169-184 (1991) (suggesting mediation may even be effective in some domestic abuse cases.)