The 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 harmonious.
• 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 parent.)
• The effect of divorce and/or separation of the parents on the child.

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 their decision.
• 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:

1. The social history and mental status of (a) the parents or others caring for the child; (b) the child's needs or wishes.
2. 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).
3. Observations of parental interaction and child/parental interaction.
4. Observation and interviewing of other relations, neighbours, general practitioners, teachers, etc.
5. 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

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 1988).

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 al 1994).

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 parenting.

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 resolution.

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 with one party or another.

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