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:

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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/

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