Role of Mediation in Child Custody Disputes
Ludwig.F. Lowenstein Ph.D
Southern England Psychological Services
Justice of the
Peace Vol 164 No 14 April 1 2000 p 256-262
Clinical psychologists have, for some years, been
involved in child custody disputes, and most especially in the assessment
of parental fitness. Disputes may arise in the following cases:
(i) parental divorce or separation (one-third of children live with
a stepfamily and more than half in a single parent home -Bray 1991);
or (ii) where there is concern as to the treatment of-children within
the family by one or both parents.
Problems Arising from Custody Disputes
It has been found that homosexual or lesbian parents
seeking child custody or adoption continue to be marginalized by
the general public and the legal system (Mclntyre 1994). Yet this
is despite research on gay parenting and children raised by gay
parents, which documents that same-sex couples are as effective
as mixed-sex couples. In addition, studies have failed to show differences
between children raised by lesbian and heterosexual mothers. Many
approaches have been employed by the courts to evaluate the fitness
of homosexual parents (Fowler 1995), including the "per se",
the "middle ground" and the "nexus" approach.
Examples of rationales put forward by the courts when denying custody
include: possible damage to the child's psychological development;
societal stigmatization, harassment or intolerance; an alleged inability
of gay people to be good parents; the threat of AIDS; and potential
exploitation/molestation of children by gay parents. Mediation -was
used most successfully in cases of gay parenting where the mediator
attempted to interpret the sub-culture of the gay lifestyle which
is essentially different from the heterosexual equivalent - the
purpose being to encourage understanding between participants that
will allow them to continue parenting tasks together whilst developing
very different personal lives (Campbell 1996).
During times of friction between spouses, the risk
of domestic violence increases. Newmark et al (1995) studied 293
families disputing custody or visitation rights: 80 pet-cent of
the women and 72 per cent of the men reported experience of abuse
during the period dispute. Similar reports were provided by Sorenson
et al (1995) where Judges appeared responsive to allegations of
abuse with regard to awards of primary physical residence, despite
the lack of substantiated evidence. Allegations of maltreatment
had no apparent impact on awards of shared, versus sole, custody.
Another study which considered spouse violence was
carried out by Mathias and Tanner (1998). A sample of 149 couples
was assessed for spouse violence prior to family court mediation.
Violent couples who reached agreements chose terms granting wives
significantly more power in relation to control over custody and
visitation than terms chosen by non-violent couples. This suggested
that wives of violent husbands were empowered sufficiently during
Standard mediation to negotiate somewhat more powerful, safer terms
for themselves than were necessary for wives of non-violent husbands.
Nevertheless, 57 per cent of all agreements between couples specified
a form of shared custody, which is thought to promote too much future
contact between the violent ex-spouses. The tendency for violent
spouses to choose shared custody implies that wives need violence
screening and special protective Intervention measures to successfully
negotiate safer, more restrictive sole custody agreements.
During custody battles, there is a danger of child
abduction by one or other of the parents. Johnston and Girdner (1998)
carried out in-depth interviews with, and administered psychological
tests to, 70 parents; half were abductors and the remainders were
the non-abducting parents. The major distinguishing characteristics
were arranged into six profiles of risk for serious custodial interference.
Family court councillors then randomly assigned 50 families to either
10 or 40 hours of free counselling service. At the nine-month follow-up
session, the at-risk parents, as a group, were substantially more
co-operative, expressed less disagreement, and were more likely
to have resolved disputed custody issues with their ex-partner compared
to baseline (time of referral to the project).
Types of Child Custody
Due to the disputes resulting from marital breakdown,
child custody evaluations are conducted by specialists such as psychologists,
psychiatrists and social services. It is usually the parents who
are considered best able to meet the legitimate needs of the child
who are granted rights of custody (Wall and Amadio 1994; Smoron
1998). Joint custody resolution, although a positive solution, is
less frequently decided upon and, more often, one parent is awarded
sole legal custody while the other is granted j varying degrees
of visitation rights.
In the rare case where joint custody occurs, one parent l has "physical"
custody and the child spends most of his or her time with that parent.
The parents share parental rights and decisions relating to the
education and care of the child. The main differences between joint
and sole custody are:
- In joint custody there is more interaction
between the child and either parent. This is positive,
providing any controversy is minimal.
- There is obviously more association between parents - again
to the benefit of the child, providing the interaction is mainly
- There can be more flexibility as to who is caring for the child
at a particular time, which can be of value to either parent,
should one need to be away from home or be unable to care for
the child (Clingempeel and Repucci 1982).
Evaluating Parental Fitness for Custody
Evaluation occurs when there is some doubt as to whether either
of the parents is fit to have custody or visitation or whether visitation
is to be supervised. Parental competency is not easy to assess and,
on the whole, unless there is serious concern - the possibility
of sexual/emotional/ physical abuse - the natural parents retain
their right to custody (Azar and Benjet 1994).
Gardner (1997) describes the "Parental Discipline Technique
Self-Report Instrument" for objective comparison by examiners
of parents' ability to use disciplinary techniques when conducting
a child custody evaluation. Evaluators assess each parent's assets
and liabilities and then compare the two to ascertain which parent
would be more suitable for the child to live with.
One of the most difficult issues faced by the courts and expert
witnesses involved is when children refuse to visit a parent. Courts
are often confronted with children who, regardless of court orders,
refuse to visit their non-custodial parent (Murray 1999).
Baker (1997) summarizes the most important principle when dealing
with parental custodial disputes: the welfare of the child is paramount.
Hence, the emphasis must be on the child's rights and parental responsibility.
It is vital that children be protected from "external abuse"
whilst under the care of the parent, ie, physical, sexual and emotional
abuse. The parent with custody rights must be able to protect the
child from abuse within and outside the family circle. A parent
who is not competent in this provision, for whatever reason, may
have to relinquish the custodial role temporarily or even permanently.
In custodial disputes parents are often hostile to one another
and to the authorities involved. Outsiders, including social services,
are often viewed as unnecessary "meddlers". Yet, failure
of the authorities to become involved can result in tragic consequences.
The primary task of the expert witness in such cases is to help
decide on the best possible course of action which will benefit
the child, whilst considering the parents who may be in an acrimonious
relationship. It is the role of the expert witness to assess:
- Family interactions and lifestyle.
- The competence of both parents and relations or unrelated witnesses.
(Questions may be asked regarding the sexual orientation of either
- The effect of divorce and/or separation of the parents on the
Experts may well come under attack and be criticized by the parents
or various individuals, whatever decision they reach. Criticisms
may relate to the following:
- Their expertise and the clinical tests or methods used to reach
- The personality or character of the expert witness, or alleged
unethical approaches used in carrying out the evaluation.
Fees or payments may be withheld due to disagreement with decisions
made, although other excuses will be given for non-payment. Currently
the court often appoints the expert, although the solicitors representing
the parties in dispute may agree on the appointment (Weissman 1991).
Approaches Used in Decision-making
Among the essential components on which psychologists' definite
or interim decisions are made are:
- The social history and mental status of (a) the parents or
others caring for the child; (b) the child's needs or wishes.
- The standardized objective tests of parents and children, eg,
the Eysenck Personality Inventory or the Minnesota Multi-Phasic
Personality Inventory (MMP1). There may also be included projective
techniques which are not standardized on norms, such as the Thematic
Apperception Test (TAT) or the Children's Apperception Test (GAT).
- Observations of parental interaction and child/parental interaction.
- Observation and interviewing of other relations, neighbours,
general practitioners, teachers, etc.
- Research of various documents from different sources, including
medical records, police files, etc.
The collection of information and evidence, as above, is ideal
but not always possible. Evaluation is an exhaustive exercise in
compiling and sifting through information (Ackerman 1995). Only
then can conclusions or verdicts be reached upon which decisions
can be made. Despite the even-handed approach, one party or the
other will often challenge decisions. However, a variety of different
custodial arrangements and visitation rights can result.
Although, in a perfect world, the child remains with both parents
in a harmonious relationship, the next best alternative is for parents
to interact in a positive manner following divorce or separation,
and to share joint custody. Unfortunately, such ideals are rarely
possible. Sometimes a constructive solution can be achieved with
the efforts of an expert witness, such as a psychologist or psychiatrist,
through mediation. Keilin and Bloom (1986) drew up the table overleaf
indicating preference for custodial recommendations.
It is generally considered that joint custody is of most benefit
for the child, providing that the parents are in a relatively harmonious
relationship. In this way, children can maintain close contact and
family cohesion exists (Crosbie-Burnett 1991, Stiller 1986, Wolchik
et al 1985).
Table 1 - Recommenations
Mean % time actually recommended
|Single parent custody without visitation
|Single parent custody with visitation
|Limited child custody
|Other arrangements including foster home or placement with
There are also sex differences to be taken into account in custody
decisions: Crosby-Burnett found that girls are more upset by sole
custody decisions, whilst boys express more anxiety in joint custody
families. Poor adjustment occurs when there are continued signs
of hostility and conflict between the parents, irrespective of the
type of custody arrangements (Emery 1982, Hetherington and Arasteh
The Role of Mediation
The role of the expert witness as mediator cannot be stressed
too highly when custody disputes arise between parents (Grych and
Fincham 1992, Kelly 1991, Lowenstein 1998, 1999 a, b, c, d). Mediation
is beneficial to both parties - especially fathers and, to a lesser
degree, mothers (Emery et al 1991 and 1994). A study by the present
author found that mediation was far more successful in developing
harmony between parties than the litigious approach.
An analysis of mediation procedures was carried out by Evans and
Havercamp in 1994. They analysed the discrepancy between the conceptual
ideals of mediation and the actualities of child custody mediation
practices. Twelve assumptions that may threaten mediation processes
and strategies included: pre-mediation interview; involving the
child as decision-maker; the spacing and sequencing of sessions;
games, simulations and trust exercises; and the use of written agreements
through the mediation process. An analysis of 32 cases of custody
mediation revealed two contrasting styles of enacting the mediator
role: the settlement/orientation style (SOS) and the problem-solving
style (PSS). The SOS mediators were primarily concerned with securing
a settlement and remaining neutral. The PSS mediators were more
focused on understanding the causes of the conflict through persistent
questioning, and were willing to part from strict neutrality in
cases where the conflict was being fuelled by particularly destructive
behaviour in one of the parents. SOS was the mediator style in 59
per cent of cases, and PSS in 41 per cent. Compared with SOS, PSS
produced a more structured and vigorous approach to conflict resolution
during mediation, more frequent and durable settlements, and a more
favourable attitude towards the mediation experience (Kressel et
Schwartz (1994) discusses the legal procedures in divorce that
can adversely affect children, including the negative impact of
litigation, children's lack of legal representation, and mandated
joint custody arrangements. The need for evaluation of parental
interaction, the importance of expeditious decision-making regarding
living arrangements, and the role of mental health professionals
in custody decisions also come under
discussion. Recommendations include educating legal professionals
in matters of child development and children's rights and empowering
children in the custody decision-making process.
It has been established that during mediation, disputants accuse
each other of a particular offence. Most of the alleged offences
involve perceptions of specific behaviour instead of non-negotiable
character flaws. Disputants frequently rebuke their former spouses
rather than simply asking for an explanation. In general, partners
tend to respond to these aggravating approaches with equally aggravating
account forms; these are followed by rejection of the account or
by mediator intervention (Manusov et al 1994). On the whole, couples
are more likely to reach custody agreements when mediators intervene
after reproaches, when discussion over behaviour is avoided, and
when the reproachers are allowed to use direct rebukes.
Mediation is not universally accepted, but is widely respected and
the evidence points in its favour. One review of assessment methods
in custody cases (Hysjulien et al 1994) states that there is very
little empirical evidence to support the efficacy of methods typically
used by professionals in making recommendations to the court. This
view is in the minority. Most of the research indicates a positive
or favourable impact from the employment of mediation techniques
(see Burrell 1994 and Emery 1994).
Donohue et al (1994) examined the impact of mediators' interaction
management on client satisfaction during mediation of child custody
visitation and support disputes. Transcripts of 22 one-hour mediation
sessions revealed that mediators who ignored disputants' relational
concerns experienced more difficulty bringing them to agreement.
A follow-up study by Kitzmann and Emery (1994) found that custody
settlements promoted on-going contact between parents after divorce
and this resulted in both reward and risk: children gained when
the parents' relationship was co-operative, but suffered when parents
continued to fight.
In their comparison between mediation techniques and litigation,
Emery et al (1994) discovered that for fathers it was significantly
more satisfying to mediate than to litigate. The mediation approach
also led to greater compliance of fathers, and satisfaction amongst
mothers. The factors influencing success in mediation were studied
by Depner et al (1995). Characteristics indicative of a good outcome
included the attributes of the father - particularly relating to
educational influences - and whether the parents decided on shared
An exanimation into the long-term effects of mediation in custody
disputes was carried out by Dillon and Emery (1996). Twenty-five
parents who chose mediation and 28 who opted for litigation were
followed up nine years after the dispute was first brought to court.
Parents were asked whether the child involved in the dispute had
experienced difficulties in adjustment and whether psychological
treatment had been given. Frequency of direct and indirect contact
between the child and the non-resident parent was assessed, and
the parents rated inter-parental co-operation and conflict. Non-custodial
parents assigned to mediation reported more frequent current contact
with their children and greater involvement in current decisions
about them. Parents in a mediation group also reported more frequent
communication about their children during the period since dispute
The work of the present author (1998) discusses the steps involved
in mediation, which should be carried out before or during legal
action but prior to the court's enforcement of a solution through
the law. It is proposed that mediation play a Tar larger role within
the justice system, especially in cases of parental alienation syndrome.
With at least one in three marriages leading to separation or divorce
in the UK, there is a greater urgency to co-ordinate a plan of action
with the legal system to make certain that both parties in custody
cases continue to play a role in the lives of their children. Professionals
such as qualified psychologists or psychiatrists should be able
to offer a full course of mediation before partners begin divorce
proceedings or consider decisions regarding the placement of children
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