Making Domestic Relations Cases More Child Centered

Tens of thousands of children each year are ensnared in bitter custody battles. While the “outcome” of such cases should be based on a child’s best interest, the legal process often undermines this result.

The Dimension and Nature of the Problems

1. Each year, more than one million children are involved in parental divorce, with a growing number of younger children being affected.
2. Many parents who are in legal conflict over their children have never been married. While the incidence of children borne out of wedlock has declined in recent years, the numbers remain high. Between 1970 and 1992, the number of children born to unwed parents tripled, reaching 1,200,000.
3. Study after study has confirmed that children suffer emotional distress from their parents’ divorce or separation. Divorce has been found to lead to poor outcomes for children in school, in emotional and behavioral functioning, and in self-esteem. Children experiencing bitterly contested (“high conflict”) custody cases are at even greater risk for psychological maladjustment, including anxiety, depression, drug abuse, and aggression.
4. Allegations of substance abuse, domestic violence, and child maltreatment, as part of custody disputes, are pervasive.
5. The amount of pro se litigation in custody cases, where one or both parents are not represented by a lawyer, is high and appears to be growing. It is not uncommon for courts to report that over half of their domestic relations cases are pro se.
6. Many parents embroiled in a custody dispute unlawfully “abduct” or threaten to abduct their child. This includes removing their child to a foreign country.
7. More custodial parents are relocating with their children, often great distances, posing new dilemmas to parents, children and courts.
8. Contested custody cases often involve mental health evaluations that fail to recognize and build upon the strengths of each parent.
9. Billion of dollars of child support remain uncollected because paternity has never been established, a support order never rendered, or a court order never enforced.

Community forums should not just “vent” problems; they should explore Promising Solutions, such as:

• Alternative programs to litigation, such as mediation
• Parent education programs, aimed at informing parents of the real consequence to children of separation or divorce, and how they can help prevent unhealthy post-separation outcomes
• The appointment of specially trained representatives, legal and non-legal, to represent the interests of the child
• Culturally competent and comprehensive mental health services that are more readily available to the courts and the parents, including access to “neutral” evaluators who can focus on parental strengths, not just weaknesses
• New court structures and procedures, such as unified family courts, designed to be more family-friendly
• Federal and state laws, and international policies, aimed at discouraging parental abductions of children and conflicts between court orders from different states
• Innovative ways to look at parenting, after separation and divorce, that rejects foreboding legal terminology such as “custody” and “visitation” and creates new language and concepts such as “parenting plans” that promote win-win outcomes and celebrate parental strengths, not weaknesses.

Discussion Questions
It is important to engage the larger community in these issues, and their participation can be drawn out with such questions as:

• How can the community support and develop education, counseling, employment assistance and other programs that promote responsible parenting prior to custody or visitation conflicts, as well as after separation or divorce?
• How can the community foster a spirit of cooperation among the courts, lawyers, mental health professionals, and others involved in the separation or divorce experience?
• How do the larger unmet legal services needs of the community affect the vulnerable populations served by the domestic relations courts?

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