How Courts Deal With Tough Custody Cases

Child Custody

Family Law, Divorce law

The Price of a Child's Future

In family law, there are a myriad of philosophical and ethical issues which society must confront. The very personal and intimate nature of family, as well as the permanent ties which bind members of a family together, contribute to the complex and delicate nature of the circumstances where the state gets involved in family litigation. The state has legitimate interest in outcomes of such cases, as it has both immediate and long-term effects for the state. These interests range from how the individuals are taxed to its obligation to the general welfare of its members. In this particular case child custody investigation is analyzed and evaluated to see if current trends are in the best interest of all members involved, particularly for the children, and what could change to give the best possible future for children involved. This will focus on investigation and other practices immediately involved with and surrounding courtroom custody battles.

According to the Virginia Code Section 20-124.3 (Best Interests of the Child), which is quite typical of most jurisdictions today, the courts will consider all of the following factors when determining custody of children:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs.

2. The age and physical and mental condition of each parent.

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child.

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members.

5. The role which each parent has played and will play in the future, in the upbringing and care of the child.

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in matters affecting the child.

7. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.

8. Any history of family abuse as that term is defined in ss16.1-228; and

9. Such other factors as the court deems necessary and proper to the determination.

Courts are requiring mediation in most divorce and custody cases because studies have shown that in the case of a mediator these circumstances tend to result in long-term satisfaction for the parties involved. Mediators also reduce government costs in child support enforcement and punishment for violation. There are many strongly opposing opinions held by differing groups voicing their opinions about this topic. Commentators include psychologists, sociologists, law analysts, and even parents have formed associations to help voice their own opinions. Despite the fact that most states have equality laws that deny any bias to one parent over another, there is a definite trend that most mothers receive custody of toddlers and young children. To arrive at any conclusion on the matter one must consider the three major policies regarding family law in child custody cases. With the costs and benefits placed upon the scale, we may ascertain a more accurate assessment of the tipping point at which the cost of more information begins to outweigh the net benefit for the situation. With this balance point in focus, we can fully understand that more investigation is required; except for the circumstances that the cost of obtaining that information will not be more harmful to the children than the net long-term benefit that information will provide in determining which parent receives custody.

This is a primary issue of concern regarding many children in America, since 45% percent of children live without both a father and a mother in their home and 23% percent live with a single parent. Researchers have found that both parents play an important role in the mental and physical development of children. A father's engagement with his child will likely exert direct influences on child development in the same way that the quality of mother-child attachment influences child development (Lamb, 1997). Fathers' biological and socially reinforced masculine qualities may predispose them to treat their children differently than do mothers. For example, fathers are more likely to encourage their children to be competitive and independent and to take risks than are mothers (Fatherhood in the Twenty-First Century, p. 130). Mothers, however, bond with children in ways that fathers simply cannot; oxytocin is a hormone that contributes influences bonding and produces positive feelings; this hormone, released in large amounts during labor and after stimulation of nipples from breastfeeding, chemicals bonds mothers to children. This hormone is almost exclusively released for men during the refractory period immediately following an orgasm; there is no bio-chemical influenced bond between fathers and children and some suggest this compromises fathers' sensitivity to some subtle needs of children.

From this and further research on the effects of deprivation of a parent it is easy to conclude that ideally it is most beneficial for the children to have heavy involvement from both parents in all stages of their development. Joint-custody is not beneficial or simply not possible in some circumstance, such as when one parent is abusive, when parents move a great distance apart from one another, or when the two parents frequently engage in intense arguments while in the children's presence. Though the lattermost example is debatable, as there is some evidence that shows that joint-custody will influence the parents to work better together resulting in a positive net benefit.

When joint custody is not possible and both parents fight for official guardianship over the children, the case goes to court. This courtroom process is traumatic and stresses both the already poor relationship between the parents, as well as the relationship between parents and their children, depending on the degree to which the children are involved in the process; this involvement may range from relatively non-existent to being called upon to testify for or an against one parent or the other. In some cases, the children learn about the situation in the courtroom only by what their parents tell them; in others, they may be pressured into parental alienation syndrome, a term used to refer to a child pushing one parent away as a result from adult influence. Parental alienation can be as simple as a slight preference of one parent over another to as serious as creating false memories of abuse by the alienated parent.

The stress of divorce alone can be substantial on the children's psyche. Though several studies discuss the negative effects of divorce on children, an example of how divorce can adversely affected one child is apparent in the following statement from one anonymous interviewee:

After my parent's divorce, I was devastated. I felt rejected by my father, rejected because my mother wasn't good enough for him, rejected because I wasn't good enough for him, or so I felt at the time. My father remarried shortly after the mandatory yearlong separation period and that was another blow. I immediately hated my stepmother because I felt he chose her over myself. A short while after that, my mother remarried and we moved out of state to live with her new husband. My brother was older and chose to finish school there and live with my dad, I wasn't really given a choice. I didn't really want to leave my mom, but I didn't want to leave my dad either. I then felt that both my brother and my father had abandoned me. Even though I would visit and talk to them on the phone often, I secretly hated them for their decisions. All men must be like them, I thought, they can't be trusted because they will only hurt you. It took me many years to come to terms with their decisions and realize that they never wished to abandon me, and that they continued to love me. Even now, as an adult, I struggle with some of those emotional scars and I don't know that I'll ever be able to fully heal. I'm pressing forward trying to deal with my issues, but I still struggle with self-esteem, an eating disorder, and trusting men in general.

Though this case is one single incident, it is clear that divorce alone, even without custody battles, can have lasting negative effects. With an ever-present understanding that such trauma can have so deep and lasting effects, many judges are extremely cautious to involve the children in the courtroom processes. Such research has led many judges to seek the skills of child therapists in dealing with children. Counseling is used to help children cope with the stresses, to discover if any parental abuse has occurred, and to discern children's opinions and preferences about the situation in a non-intimidating, friendly environment. This is employed as an alternative to having a child testify directly. The therapist cannot testify on behalf of the child, but can account to the court his interpretation of information gathered from sessions with the child. Psychologists must not give opinions regarding the physiological functioning of individuals who they have not personally evaluated, which implies that the therapist cannot give an opinion of the parents of children if they have not evaluated the parent's themselves. A few ways in which information is gathered includes in-home visits, one on one sessions, and observational methods; or any combination of the various techniques.

The use of counseling is a topic of heated debate with both serious ethical and financial concerns. Some claim counseling is ineffective because children are so easily influenced, and that so easily led by questions that any data obtained from most of the sessions is merely the biased opinion of the therapist, who is discouraged from suggesting one course of action over another in court. Therapists also face very harsh consequences for malpractice. Their careers are often on the line, making many of them reluctant to work for court-related cases, as they become easy targets for parents who disagree with the outcome. Another factor to consider is that of the parents and their best interests. Most parents seek custody from a fear of losing their children or a desire to protect them, which derives from love of their children. There are some cases, however, where love of the children is less of a priority or no priority at all. In these circumstances, the parent seeks custody as a final way to harm their spouse or to ensure that they will receive the benefits of being a single parent. There are trends of benefits that occur with single parents, particularly for single mothers.

There should be more investigation as to which parent receives custody in divorce cases since often the custody goes to the mother, unless a good deal of evidence supports that she is an unfit parent. Often a father, who could give the children much better care, is quickly dismissed in preference for the mother. Kuhn and Guidubaldi, in their study titled "Child Custody Policies and Divorce Rates in the U.S.," find that women anticipate a bias in the courts regarding custody. In fact they often consider the advantages to being single rather than remaining married before divorce is even discussed with their husband; they consider the financial benefit of child support, maintaining the residence, governmental aid, and receiving half of all property jointly owned. They also have given evidence to support that in states where primary custody is discouraged and joint custody is encouraged, divorce rates are lower.

While some suggest mothers and fathers have an equal capacity to be sufficient parents, others indicate that the role of mother and father goes beyond whom best can provide for the children. Genetically ingrained in females is a more sensitive nature to the needs of their children, and even fathers who might have better means of supporting children might overlook subtle needs that mothers would recognize. In addition to sensitivity to the needs of children, mothers chemically bond with their children in a way that men are biologically unable to do. This results in an increased devotion in mothers of protecting and ensuring the well-being of her children that fathers simply would not have. There are proponents that suggest the fathers' rights movement and other organizations such as the American Coalition of Fathers and Children already increase awareness of the inequalities present and suggest that any further scrutiny would only result in unnecessary trauma to the children. They also warn that increased scrutiny may push some normally good and fit parents over the edge giving inaccurate assessments of their parenting and abilities under the stress of both the divorce and custody battle.

Even children who have experienced severe trauma or are from highly deprived backgrounds do have a capacity for resilience, although in most cases the damage they suffer in early life will always be permanent to some degree. Resilience is "the capacity to maintain or regain adaptive functioning in the face of adverse conditions" (Fraser and Terzian 55). Inner-city children from impoverished, high-crime areas who manage high levels of academic accomplishment were the original examples of resilient children. Even so, almost all children exposed to deprivation or trauma will suffer negative effects, and at some point the degree of stress will become so great that adaptation declines tremendously. Nonspecific risk factors for damage in childhood like abuse and neglect can lead to long-term problems like depression, Post-Traumatic Stress Syndrome, addiction and inability to form close relationships in later life. Poverty is another nonspecific risk factor that can will be detrimental to physical and psychological development due to poor health care, nutrition and environmental conditions that directly affect "the cognitive, motor, and academic development of children" (Fraser and Terzian 56). Genetics is another risk factor in children since schizophrenia, depression, obsessive-compulsive disorders and addictive behaviors are all partially inherited, as is the tendency toward thrill-seeking and high-risk behavior. Traumatized children may also have suffered brain damage early in life through abuse or fetal alcohol syndrome which will leave them more prone to risk-taking or unable to deal with stress.

Contextual factors that can diminish or enhance the resiliency of children include family life, school, peer groups, communities and the larger society. Family stress, isolation, conflict and harsh discipline will all "escalate risk for antisocial behavior" (Fraser and Terazian 57). Schools with insufficient resources, inadequate staff, teachers and equipment, and large class sizes will also be at higher risk for delinquency, as do delinquent peers or peer rejection, or neighborhoods with high levels of poverty and low social cohesion. Poverty, racism, lack of education and legitimate economic opportunities will "create incentives for involvement in drug, gun, sex, fencing and other illicit marketplaces" (Fraser and Tenzian 57). Combined with stressful life events such as divorce, death of a parent, rape, street violence or abuse, the risk to long-term childhood development is greatly magnified.

Resilient children will successful adapt to like's problems in spite of these difficulties, overcoming the odds against them, recovering from traumas and functioning in stressful environments. This depends on the degree and frequency of the stressors and other factors that offer children protection from risks. High intelligence, for instance, "can be conceptualized as a factor that promotes positive behavioral outcomes in all children," as are peer acceptance and higher socioeconomic status (Fraser and Tenzian 59). Having health insurance plays a protective role as well since it "reduces vulnerability and improves the chances for recovery to good health," as do school programs designed to diminish violence and drug use (Fraser and Tenzian 60). Surveys of minority, inner-city youths in Chicago also emphasized that good relationships with friends, family and teachers also played a protective role.

Personal factors associated with resilience included empathy, intelligence and humor, while family factors such as low conflict and positive parent-child relationships all led to resiliency in the face of trauma and adverse life events. Both risks and protection are also "bundled" so they reinforce each other in a positive or negative direction, so that poverty combined with violence, drug addiction, abuse, malnutrition and poor health care increase risks for negative outcomes (Fraser and Tenzian 63). Family life has a greater influence on the development and welfare of children while peers and school have more of an impact on adolescents. This is a major distinction that all parties in child custody cases should be aware of, such as the fact that association with delinquent peers in adolescence is a higher risk factor than in childhood. Moreover, for both children and adolescents "the importance of the social and physical environment has been underestimated" (Fraser and Tenzian 62). For African-American and other minority children, positive self-image and racial identity are also very important protective factors. Overall, the most resilient children will have levels of bonding with parents which leads to greater "social and emotional adjustment" (Fraser and Tenzian 65).

Judges are required by law to consider the best interests of the child when awarding custody, although almost none of them are experts in child development or mental health matters. They have "heard it all" in custody fights and realize that children are often severely damaged when their parents battle each other for custody, but their time is strictly limited in dealing with each individual case (Tumas 7). Mental health professionals can be of great assistance to the courts in custody cases, since unlike attorneys and the parties to the case they have no vested interest in the outcome. Because of heavy caseloads, judges do not have much time to speak with children and their parents, which is why these experts appointed and paid for by the court do most of the interviews and investigative work before they make recommendations. In most states, "judges are required to consider a parent's compliance with his responsibilities as a child's 'natural custodian'," and parents must sign affidavits to the effect that children have a right to a "continued relationship with both parents" (Tumas 9). Among mental health professionals, the best evaluations will consider the strengths of both parents and their abilities to advance the best interests of the child. Ideally, their recommendations will prevent future disputes and litigation over the same custody issues.

Judges do not have the expertise about mental health, addiction and abusive behavior, which is why they must rely on the opinions and advice of mental health professionals. Under the best of circumstances, choosing which parent to live with is bound to be traumatic for children, although the law requires that their wishes be taken into account. Judges usually have time only to interview each child once, although "absent pathology, abuse or 'coaching', few children choose one parent over the other" (Tumas 11). Custody decisions also depend on which parent retains the family residence are where the schools and friends of the children are located. Judges do not have the necessary training to interview children of various ages, but they know that "older children in particular are more inclined to accept the outcome of custody litigation if they believe that their views have been heard" (Tumas 11). Above all else, judges prefer recommendations that will minimize future conflicts and litigation, which are also child-centered and not designed simply to minimize conflict between the parents.

In the adversarial system, the function of attorneys is to vigorously represent the interests or their clients and then leave it to the courts to make the final decisions. In child custody cases "a responsible attorney may refuse to argue a position or cause with which he or she has serious disagreement," especially when children are being used as weapons without proper concern for their own welfare (Dobrish 13). Lawyers will also chose experts to guide them on issues of mental health and child psychology, preferably on the basis of their professional abilities rather than for any predilection about how they will decide. They also have to brief attorneys about areas outside their expertise such as addictions, mental disorders, abuse and psychological testing to help them prepare for the trial. Since these advisers work off the record "it is necessary that there be a rapport and an ease of communication between the two," although their discussions are also protected by attorney-client privilege (Dobrish 17). Attorneys may also find it necessary to employ expert witnesses (hired guns) in order to address questions of parenting ability or if "there is a claim that the personality or behavior of the other parent is harmful" (Dobrish 18). They will review the work of other mental health experts in the case, including those appointed by the court, to ensure that their recommendations are not contrary to the interests of the child. Attorneys will also use them to prepare their clients for interviews with the court-appointed mental health expert, even telling them what close to wear and how to sit and express themselves (Dobrish 19).

Increasingly, the courts have appointed attorneys as law guardians or guardians ad litem to represent the interests of the children, although there are few guidelines regulating their qualifications for these positions. They are required to give their opinions about what the best interests of the child are, and are most commonly employed in cases involving younger or incapacitated children. In most jurisdictions a law degree is the only prerequisite for becoming a guardian, although some state have begun mandating more specialized training in child development psychology, social services, abuse and neglect issues and cultural and ethnic diversity, but "there is unfortunately no system to measure compliance or competency" (Grant and Klee 22). These guardians are often liable to pat too little (or sometimes too much) attention to the wishes of the child in custody cases, and are prone to numerous errors because they are not qualified therapists. Many also become "overly intrusive when feeling protective of the children," making parents suspicious of their role and causing children to feel guilty for giving negative information about their parents (Grant and Klee 23).

In the traumatic and dysfunctional family situations common in custody cases, guardians should probably be qualified mental health professionals rather than lawyers. Most of the children involved in these situations have "lived through severe hostility and conflict while their parents were together," and during custody battles parents will coach them to have negative views about each other (Grant and Klee 24). Children may feel responsible for the divorce or for choosing one parent over another, and they frequently have to change homes and schools or end up separated from siblings. Guardians are almost never familiar with child development, although they should at least be "knowledgeable enough to consult other experts for their advice and guidance" (Grant and Klee 25). Since their fees are paid by one or both parents, according to income, this can lead to conflicts of interest, so it would be better if the state and county governments were to pay them. In New York State before the reforms of 2003, law guardians were often patronage appointments paid as much as $400 an hour before the legislature streamlined and limited their fees (Grant and Klee 28). Legal guardians can end up favoring one parent over the other, even if this means ignoring the best interests of the child, while parents will also try to influence and manipulate them and make false accusations against each other. In most custody cases, however, "the requests or recommendations of a law guardian or guardian ad litem are routinely granted and approved by the court" (Grant and Klee 26). Law guardians therefore have to be aware that children are used as pawns and bargaining chips in custody cases, or for parents to extract financial benefits from each other.

Most mental health professionals prefer to avoid the legal system at all costs, although some like Bernice Schual found it a highly fascinating and fascinating to work on custody cases. In this area of family law, the task of the clinician is to "understand the wide range of forces at play in the family, both internal and external, and to make sense of all the available information" (Schaul 31). These families are unable to come to any rational agreement on joint custody due to intense anger and hatred that is often stimulated by the lawyers, and therefore the impasse is psychological and emotional rather than legal. If the clinician makes an erroneous recommendation, then the consequences "are often disastrous for families that may be forced to live with poorly conceived and inappropriate custody arrangements" (Schaul 33). Practitioners have to be informed about the complex factors and dynamics in the emotional lives of families undergoing divorce and breakup, with are extreme stress situations. Few specialized training programs exist in this field or on how divorce and custody fights affect children of different ages. Only through experience will mental health professionals understand "what constitutes normal and disturbed reactions to divorce in the family," how it impacts the attachment needs of children and toddlers and the cognitive and emotional development of older children (Schaul 34).

Parental competency is the key issue in custody cases, and this is difficult enough to assess in normal situations much less during an acute crisis like a divorce. A psychologist must decide whether they have 'good enough' parenting skills to take custody or whether they are narcissistic and self-absorbed, or whether they are more interested in attacking the other parent than in the welfare of the children. Divorce is also a central developmental period in the lives of parents in which their "sense of identity and place in the world is being threatened" to the point where they may not even be able to consider the needs of children (Schaul 35). Although each parent has to write a self-report as part of the evaluation process, this may or may not have much connection with reality, which leaves the clinician in the position of having to discover the truth. All psychologists involved in custody cases should be highly skeptical of self-reports, for parents are far less likely to describe themselves frankly and truthfully due to fear of a negative evaluation and a desire to make themselves look as good as possible. They may not simply be lying to the judges, attorneys and psychologists -- who are quite accustomed to that since it happens every day in their line of work -- but also lying to themselves. Fathers who imagined that they were excellent parents may in fact have employed babysitters most of the time, while "highly disturbed and narcissistic parents" may try to hide their family history completely (Schaul 37). Unethical attorneys will instruct their clients to lie, fabricate and cover up unfavorable actions, especially parents with anger and abuse issues or those who were frequently absent from the home.

Wading through all this fabrication and denial is no simple task for the mental health professional, who has to collect information from as many sources as possible, including the children. Young children are less discrete and frequently likely to blurt out the truth about their parents, while older children may already be allied with one parent or the other. Teachers, therapists and nannies can also be important sources of information when used wisely, although nannies usually have a stringer attachment to one parent over the other. Therapists have a very different understanding of these issues from judges and lawyers, whose usual bias is in favor of coming up with some type of agreement that will satisfy both parents. Patients who are "disturbed or malevolently motivated" also present a different kind of problem for psychologists than attorneys and judges (Schaul 41). For the courts the ideal outcome is for parents to resolve the issue on their own rather than resorting to lengthy and expensive trials that often involve repeat appearances, but this means that the welfare of the child will become a secondary consideration. Trying to make custody arrangements for infants and toddlers "can generate intense disagreements about what is best for a child" since they cannot communicate their wishes (Schaul 42). For disturbed children, alternating their residences may be satisfactory to the court, but from a psychological point-of-view this is one of the worst outcomes, even though it might seem 'fair' to parents and attorneys. Clinicians can expect to be severely attacked by attorneys regardless of what recommendations they make or the soundness of their views, and also that they will have to make repeated trips to court when earlier custody arrangements are challenged by one parent or the other. Explaining clinical issues in a trial setting is difficult under the best of circumstances, especially to attorneys and judges who have little understanding or patience for psychological theories and jargon.

In 1994 the American Psychological Association created a set of Guidelines for Child Custody Evaluations in Divorce Proceedings, which is not mandatory for clinicians but highly recommended. Making these custody evaluations requires "specialized competence" in forensic psychology, and in court psychologists will often be cross-examined about their professional competence and whether they followed the Guidelines (Wulach and Shapiro 46). Failure to do so can result in lawsuits and malpractice claims, and in any case complaints about psychologists to state licensing boards are always very high in custody cases. These APA Guidelines are not designed for abuse and neglect cases in which the courts have terminated parental rights, and in custody cases they make the psychological welfare of the child paramount regardless of the attorney who retains the services or the expert or pays their fees. Making recommendations about parental capacity can be complex and difficult, and even a schizophrenic mother on medication me be a preferable parent to an abusive, sociopathic father or one who simply has little time for children. Hyperactive children may be better off with an authoritarian parent rather than a democratic one who fails to set firm rules and boundaries.