How Courts Deal With Tough Custody Cases Thesis

Excerpt from Thesis :

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…

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