Child

Literature Review

Last Updated Aug 20, 2008 11:42 PM

HISTORICAL DEVELOPMENT

Approximately one in two marriages in the United States ends in divorce, affecting about a million children per year. About 10% of divorces involve custody litigation. Thousands of children, therefore, are at the center of often protracted legal battles.

A number of authors stress the importance of understanding the historical basis of the custody dispute (Derdeyn, 1976), and evaluating clinician’s role of undertaking a comprehensive evaluation, rendering a readable, helpful report, and, if necessary, testifying in court. Haller (1981) stresses the importance of preparing a strategy for the evaluation and warns against evaluations that assess or support only one party to the dispute. Benedek and Benedek (1980) discuss the role of the expert and the importance of clinician education in the specifics of child custody evaluation. Benedek and Schetky (1985) discuss child custody assessment and the “best interests” presumption. Weithorn (1987) provides a comprehensive legal context for the clinician and Ackerman (1994) provides a guide for psychologists that includes pertinent information for child and adolescent psychiatrists and other clinicians. Nurcombe and Partlett (1994) provide an excellent overview of child custody and the role of the clinician. In a section on ethical issues, they stress the importance of the evaluator functioning as an expert and not as an advocate or adversary.

During the 1970s, joint custody, in which both parents are granted equal rights to and responsibility for their children, was touted as almost a panacea for the negative impact of divorce on children. Many saw this arrangement as a way to avoid protracted litigation and its presumed deleterious effects on families. Steinman (1985) describes factors that might predict which joint custody arrangements succeed and which fail. Although her statistics (one-third of joint custody families living successfully, one-third having difficulty, and one-third failing) may not be accurate, her observations make sense: joint custody arrangements can work reasonably well if the divorced parents are psychologically healthy, able to set aside their anger, frustration, and disappointment with each other, and willing to tolerate each other's style of parenting. Atwell, et al. (1984) reviews the psychological and interpersonal effects of joint custody on children and Tibbits-Kleber, et al. (1987) discusses the history and legislative ramifications of joint custody plans. They catalogue the advantages and disadvantages of joint custody and outline the role of the clinician in counseling and evaluating families regarding this custody option. They rightly differentiate the needs (or rights) of parents who seek joint custody from the overriding needs and interests of the children who must live with the arrangement.

Several organizations have published standards and guidelines for evaluating child custody disputes: The American Psychiatric Association (APA) Task Force on Clinical Assessment in Child Custody (1988), the American Psychological Association (1994), and the Association of Family and Conciliation Courts (1994). The standards of the American Psychiatric Association and the American Psychological Association provide excellent references sections that list guidelines from other organizations.

The examination and handling of child custody disputes mirrors the social forces and mores of the times (Mason, 1994). Beginning in ancient Rome and continuing until well into the nineteenth century, children were considered property and, therefore, awarded to the father, since women were accorded very few legal rights. In the 1800's, the courts adopted the concept of parens patriae, a moral (and then legal) duty to protect those citizens unable to protect themselves. As natural philosophy evolved into psychology and child development, and as psychoanalytic concepts elucidated the importance of childhood experiences, the courts became increasingly concerned with protecting family members. Courts in Great Britain and the United States became more involved in family disputes, especially when children were at risk (Weithorn, 1987). In short, family law as it is practiced today is a relatively recent phenomenon (Derdeyn, 1976).

Judges have used different conceptual models over the years in their decisions regarding children in custody disputes. Kelly (1994) describes the history of how parents and courts have made decisions regarding custody and access. Recognizing the findings from psychoanalysis on the importance of the mother-infant relationship, the courts adopted the “tender years” doctrine, which held that in deciding a custody dispute, courts should assume that young children need to be with their mothers.

While the tender years presumption was not uniformly defined, judges across the country, in their custody decisions, spoke of the special relationship between a child and his or her mother. Except in extreme cases of maternal unfitness, courts generally awarded custody of young children to the mother. In cases with children older than seven years, however, fathers often sought and gained custody.

The tender years presumption predominated well into the twentieth century, and many would argue that judges unofficially cling to it today. Nevertheless, the prevailing legal test in all states is "the best interests of the child" (Finlay v. Finlay, 1925). In general, though, “best interests” means that judges must determine which arrangement best fulfills the needs of the specific children involved. The argued benefit of this approach is to place the judicial magnifying glass on the children, making them the most important part of the process. The concept represents the full embodiment of parens patriae.

Yet, the best interests concept remains an ambiguous one. In practice, it refers to whatever fosters the positive development of the child, but it can be interpreted by judges in a variety of ways, ranging from financial suitability to psychological attachment. It has been argued that the “best interests” concept perpetuates the adversarial system by inviting parties to dispute what constitutes a child's best interests. In addition, as Goldstein, Solnit, and Freud (1973) argue, the use of the word "best" creates the impression that there is a good solution, and the courts must recognize what it is. These authors have postulated an alternative judicial presumption, which, they argue, goes beyond the “best interests” dictum. The concept of the “least detrimental alternative” suggests that all children in custody disputes are harmed to some extent, and the best solution is that which appears to harm them the least.

Many have argued that families are better served by mediation, rather than litigation. Some families voluntarily submit to mediation. In certain jurisdictions, mediation is mandatory. Miller and Veltkamp (1995) argue that mediation may help to protect the best interests of children. Emery, Matthews, and Kitzmann (1994) have found that fathers are more satisfied and more compliant with child support orders one year after mediation, than one year after litigation.

The courts, meanwhile, hearing litigated cases not successfully settled, have turned to clinicians to assist in the determination of best interests. In their review of the court records of 282 disputed child custody cases, Kunin, Ebbesen, and Konecni (1992) have found that only two factors directly affect judges: child preference and the recommendations of the evaluator. Assuming that the psychological well-being of a child is as important--if not more so--than the economic, courts routinely ask psychiatrists, psychologists, and social workers for their opinions about custody, and rely heavily upon these opinions.

See also Child 389 1 - 11