The Stakeholders in Custody Law Reform

("Lost Child," by Enrique Melida)

(“Lost Child,” by Enrique Melida)

Stakeholder, like competencies and bucketization, is a term for which business managers and corporate officers have developed a special fondness in recent times.

Although it has been around for many years, it was not used very often until the 1980’s. It started becoming wildly popular sometime around the beginning of the new millennium.1 Describing it as a term “plump with cheaply bought respect,” Guardian (UK) writer Steven Poole includes it in his Top 10 list of “the worse examples of management-speak.”2 It now can be found in almost every organizational and/or governmental discussion of family law reform.

But who are the “stakeholders” in the context of custody law reform?

What is a stakeholder?

Business and legal definitions

The term stakeholder first appeared in the English language in 17083, apparently invented for the purpose of describing the person who holds the money (the “stakes”) in a bet. Black’s Law Dictionary still defines it this way, but adds a second, broader definition, namely, a “third party who holds money or property, the right to which is disputed between two or more other parties.”4 Courts continue to employ this meaning of the term.5

Using this definition, the stakeholder in the context of custody law would be a person who holds other people’s money until a winner of the custody contest, presumably one of the parents, is declared. An attorney would be an example. Family law attorneys typically take money from their clients (called a “retainer”) and hold it in a trust account until work on a divorce or custody proceeding is completed,6 it being anticipated that a “winner” of the custody proceeding will be declared at that time.

A second meaning of the term began to emerge in the corporate world during the latter half of the twentieth century. In his 1965 book, Corporate Strategy, Igor Ansoff used the term to refer to those people who, although not directly invested in a corporation as a shareholder, nevertheless had a financial interest in a company’s operations – i.e., employees and officers of the corporation, and firms having business dealings with it. Edward Freeman popularized this use of the term in his influential 1983 book, Strategic Management: A Stakeholder Approach. U.K. Prime Minister Tony Blair fostered its spread into the realm of politics in 1996 by using the term “stakeholder economy” to convey the idea that everyone has a financial interest in the well-being of a nation’s economy.7

By the mid-1990’s, the term had become a favorite among corporate executives and business project managers, who used it somewhat more loosely to describe anyone with an interest that may be affected by a firm’s operations or the outcome of its business decisions. Modern dictionaries now include this as an additional definition of the term. For example, in addition to the original legal definition (one who holds the bets for a wager), the online dictionary at Dictionary.com lists “a person or group that has an investment, share or interest in something, as a business or industry” as an alternate definition of the term.8

A “stakeholder” in the custody law context, then, can mean an attorney (or some other person who holds money pending the decision of a custody dispute) or some other person or group that has an investment, share, or interest in a business or industry related to custody decision-making. Logically, this would include, in addition to family law attorneys, judges, custody evaluators, guardians ad litem, and mediators. Since the amount of child support often is affected by the custody designation or schedule, and because mothers are awarded sole custody (or primary residential responsibility) far more frequently than fathers are, women and their advocates would also come within the business/financial definition of “stakeholder.”

Academic definitions

Some academicians have used the term in an even broader sense, to designate any person at all who may be affected by a process or the outcome of a process, whether business-related or not. Legal scholar Kathryn L. Mercer, for example, has written a law review article analyzing custody law in terms of the competing interests of four categories of people she describes as “stakeholders” – the father, the mother, the state, and the child.9

Arguments have been made that another category of “stakeholders” should also be recognized, namely, private care providers, such as foster parents.10

Mediator definitions

As used among mediators, stakeholders are “the people or organizations involved in, or affected by [a] negotiation.”11 A mediator typically will say that in a married couple’s custody dispute, the husband and the wife are the stakeholders.12

Although some mediators acknowledge that children have an interest in the outcome, they generally treat the two parties who are competing for custody of a child as the stakeholders in a custody dispute.

How courts and family law reform organizations conceptualize the term

Courts and family law reform organizations often reference the need to involve “all stakeholders” in the discussion of custody law reform, but they rarely define that term. They are more likely to simply cite some examples. The examples they cite, and the “stakeholders” they select, are revealing, though.

In the Foreword to the report on the Family Law Education Reform Project (© 2006 Association of Family and Conciliation Courts), the importance of “involving stakeholders” is stressed.13 In this court association publication, the “stakeholders” identified are judges, lawyers, mediators, parent educators, mental health experts, and financial planners.14 The Association says it is “looking to cosponsor a series of stakeholders meetings to bring together representatives of law schools, the bench, bar, mental health, and dispute resolution communities.”15

The American Bar Association has a similar view. In its seminal publication, A Judge’s Guide: Making Child-Centered Decisions in Custody Cases (2008), it says, “all relevant stakeholders should participate …  to ensure children’s issues are addressed” and then proceeds to identify these as being judges, family law attorneys, women’s advocates, child protection officers, educators, health care providers, business representatives, and people who will ensure “racial and cultural diversity.”16

In short, courts and officially organized family law reform coalitions generally have not adopted the academic  definition of “stakeholder.” Rather, they have stayed fairly true to the original and modified-corporate meanings of “stakeholder” – i.e., those persons and organizations that have a business, financial or proprietary interest in the custody decision process or outcome.

Who are the only real stakeholders in custody law reform?

Children.

Conclusion

A custody law reform committee or coalition should not consist of a bevy of judges, attorneys, mediators, court personnel, women’s advocates, or anyone else with a financial stake in children or the custody decision-making process. Rather, it should consist of a panel of child development experts, perhaps aided by an attorney or two with an understanding of how to draft statutory language to mesh their recommendations with legal requirements.

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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. To see this, try running the term in GoogleBooks’ Ngram Viewer application.
  2. Steven Poole, 10 of the worst examples of management-speak, http://www.theguardian.com/books/2013/apr/25/top-10-worst-management-speak, accessed on February 14, 1015.
  3. OXFORD ENGLISH DICTIONARY (2d ed., 1991)
  4. BLACK’S LAW DICTIONARY 660 (2d ed., 2001)
  5. See, e.g., Booth v. Booth, 134 P.3d 1151 at fn. 6 (Utah Ct. App. 2006); State v. Dudley, 21 A.2d 210 at 129-30 (N.J. Sup. 1941) (describing a stakeholder as one who receives wagers and then pays them over to the winner of an event, such as a horse race.)
  6. A retainer agreement may also authorize withdrawal of money as it is earned, or as expenses are incurred, rather than upon completion of the case.
  7. Mike Clayton, THE INFLUENCE AGENDA 9 (2014)
  8. http://dictionary.reference.com/browse/stakeholder, accessed on February 14, 2015.
  9. Kathryn L. Mercer, A Content Analysis of Judicial Decision-Making – How Judges Use the Primary Caretaker Standard to Make a Custody Determination, Kathryn L. Mercer, 5 WM. & MARY J. OF WOMEN & THE LAW 1, 14-21 (1998)
  10. See, e.g., Susan V. Mangold, Challenging the Parent-Child-State Triangle in Public Family Law: The Importance of Private Providers in the Dependency System, 47 BUFF. L. REV. 1397 (1999)
  11. Jim, Hilbert, Collaborative Lawyering: A Process for Interest-Based Negotiation, 38 HOFSTRA L.R. 1083, 1093 (2010).
  12. Id. at 1095.
  13. Andrew Schepard & Peter Salem, Foreword to the Special Issue on the Family Law Education Reform Project, 44 FAM. CT. REV. 513, 519 (2006).
  14. Id.
  15. Id. at 520.
  16. American Bar Association, A JUDGE’S GUIDE: MAKING CHILD-CENTERED DECISIONS IN CUSTODY CASES 275 (2008)

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