Introduction: Matching Legal Proceedings to Problems in Custody Disputes

Abstract

The introductory chapter presents the aim, outline, and content of the anthology. First, it describes the dilemmas and challenges that arise in custody disputes, drawing on pre-existing empirical research, discussions among policymakers, and legal scholars. Second, the chapter outlines the child welfare family-law systems of the Nordic countries. It is also argued that the focus on gender equality and the awareness of domestic violence have affected law and policymaking—as well as created new dilemmas when handling custody disputes in practice. Third, the chapter presents the paradigm shift through which children’s rights have been strengthened, for example, the right of every child to freely express their views in all matters affecting them (Article 12, The United Nations Convention on the Rights of the Child). However, the right to participation raises demands for practical implementation that, so far, have not been fully met. It is proposed that the nature and complexity of custody disputes are serious challenges for society that call for an interdisciplinary and comparative discussion. Thus, the aim of the anthology is to transcend disciplinary, institutional, and jurisdictional boundaries, in search of new knowledge that can integrate multiple perspectives and experiences. The anthology will explore how legal proceedings, in and out-of-court, can be applied to the complex problems inherent in these disputes.

1.1 Background and Purpose: Matching Legal Proceedings to Problems

Many children have experienced being the object of legal disputes between their parents,¹ concerning their custody, residence, and contact.² Research shows that parents battling in court over their children represent a risk factor, not only for children’s health and development, but also for their own physical and mental health.³ In addition, underlying causes such as abuse, neglect, or domestic violence can sometimes explain why parents struggle to legally obtain sole custody or limited contact.⁴ Furthermore, custody disputes concern deeply emotional and intimate matters, involving relationships that will continue long after the legal proceedings have concluded. This illustrates the complexity of the problems underlying legal disputes concerning custody, residence, and contact. Thus, there are good reasons for preventing custody disputes or implementing legal proceedings that minimize the negative effects and optimize positive outcomes for children and their families.

The aim of this anthology is to explore how such legal proceedings in, and out-of-court, can be matched with the complex problems that are both caused by, and underlie such disputes. The anthology draws specifically on Nordic experiences of resolving custody disputes. However, the challenges are not unique to the Nordic legal systems: they exist across the world in various legal systems.

The twentieth century represented a paradigm shift in terms of how the interests and perspectives of the child are conceptualized in society at large. This ideological transformation is reflected in the UN Convention on the Rights of the Child (CRC), adopted by the UN General Assembly in November 1989. Today, the CRC is the most widely ratified human-rights treaty; it is part of a ‘globalization of childhood’ in the sense that it features an understanding of childhood, what a child is, and is presented as universal.⁵ Since its adoption, the CRC has influenced custody-dispute legislation and practice on a global level.⁶ The general principles of the best interests of the child (Article 3) and the right to participation (Article 12) play a prominent role in child custody conflicts. Article 3—pivotal to the whole convention—provides a general standard which underpins the rights set out in subsequent articles. The concept of the child’s best interests is aimed at ensuring a holistic development of the child and embraces the child’s physical, mental, spiritual, moral, psychological, and social development.⁷

Beyond being a substantive right, Article 3 is to be understood as a rule of procedure; assessing and determining the best interests of the child requires procedural guarantees. Therefore, applying the principle also sets a standard for a legal proceeding and requires, for example, a qualitative and individualized investigation of all relevant elements, if possible, by a multi-professional team—including the child’s own view.⁸ The importance of hearing the child and including the child’s view is also covered by Article 12 and requires that the child is given the opportunity to express their views with respect to all matters that affect them, and the decision-maker must consider the child’s view in accordance with their age and maturity.⁹ The CRC thus sets certain standards for a legal proceeding concerning the best interests of the child and therefore also for custody dispute proceedings. However, it does not directly address custody-dispute proceedings; nor does the Committee on the Rights of the Child pursue the subject in more depth in its general comments.¹⁰

In many legal systems, custody disputes are family-law disputes, and are resolved according to rules of civil procedure. The accusatory character of such proceedings has been argued as unsuitable for custody disputes. Framing a custody dispute as civil procedure can cause the parties’ arguments to overshadow the investigation and assessment of the best interests of the child. It can also intensify and prolong the conflict between the parents.¹¹ With the aim of preventing court disputes, out-of-court dispute resolution proceedings have emerged within different national legal systems, with mediation being the most established concept.¹² However, research has shown that there are several challenges associated with these proceedings and they risk creating unwanted outcomes that are not in the best interests of the child. For instance, alternative dispute resolution mechanisms might fail to allow consideration of the child’s own views. Power imbalances between the parties can have a negative impact on agreements regarding custody, and risk factors could be overlooked. In addition, research has noted a lack of a theoretical basis and the absence of educated professionals in the process.¹³

Applying the principle of the best interests of the child in a custody matter is a prognostic assessment that includes the identification of both short- and long-term consequences for the child.¹⁴ Prognostic assessments also exist in other areas of law, such as medical law, migration law, and environmental law. A common feature of legal problems addressed in such assessments is that they are comparatively new to the legal system.¹⁵ In legal scholarship, new theoretical approaches have emerged in relation to the assessment of future events and risks in legal proceedings. One such theoretical approach is proactive law, in which the law is seen as an instrument that can create success and foster sustainable relationships, rather than a constraint requiring compliance from companies and people.¹⁶ Similarly, preventive law seeks to encourage new methods and concepts for how legal services can be organized to avoid conflict and disputes, with the goal of managing facts and events to avoid unwanted legal consequences.¹⁷ Furthermore, Therapeutic Jurisprudence (TJ) studies the extent to which a legal rule or practice influences the psychological wellbeing of the person or persons affected by the rule or practice, and explores ways in which anti-therapeutic consequences can be reduced, and instead improve therapeutic consequences.¹⁸

Several of the abovementioned theories and concepts have connections with more established out-of-court resolution models, such as mediation. However, while mediation has a long tradition and roots in commercial-law conflicts, the proactive, preventive, and therapeutic law theories have emerged more recently and address a variety of legal problems. The emergence of the abovementioned theories indicates that new research methods and dispute resolution models might be needed in order to tackle new societal problems, and to achieve outcomes that are better adapted to the problem itself.

Given the challenges and complexities of custody-dispute proceedings, the present anthology relies on a comprehensive procedural-law approach that considers the emotional, personal, and intimate character of custody disputes, underlying causes, and the effects that such disputes can have on the health of both children and parents. Furthermore, it includes the substantive as well as the procedural international standards enshrined in the CRC, and addresses the question of how legal proceedings in custody disputes can be adapted to the best interests of the child. The anthology presents both theoretical and empirical perspectives of custody disputes that account for the complexity of the issue. As a result, this anthology transcends disciplinary, institutional, and jurisdictional boundaries in search of new knowledge, with a view to exploring how legal proceedings, in and out-of-court, can be matched to the complex problems underlying these proceedings.

1.2 Setting the Scene—The Nordic Legal Systems and Swedish Law as an Example

Custody proceedings take different forms in different countries: the legal and institutional arrangements in place to tackle these conflicts have emerged in political and historical contexts specific to a particular state or tradition. However, across the world, the best interests of the child should now be the fundamental standard that permeate legal decision-making concerning the child. For this reason—and those relating to the nature and effects of custody disputes on health and long-term personal and emotional relationships—custody disputes present similar challenges in different legal systems.

The present book primarily draws on Nordic experiences—positive as well as negative—from in and out-of-court mechanisms as means of resolving custody disputes. However, the challenges addressed are by no means unique to Nordic legal systems. Rather, similar challenges exist in all states seeking to realize the best interests of the child in situations where the parents are involved in a deep conflict. Nevertheless, since in this book the Nordic legal systems and in particular Swedish law, serve as a context and an example of how such challenges are and have been addressed, it is worthwhile to briefly review some of the features of these legal systems.

Nordic societies and legal systems share some features that are central to the discussions and analyses of custody disputes and children in parental conflicts. One such feature is the basic historical relationship between the state and the individual, sometimes referred to as the Nordic welfare model—a system characterized by a strong state, or rather, a large and expensive public sector, with welfare benefits and services.¹⁹ This system is defined as more family-oriented than child-oriented in the sense that children encompassed by the development of a strong welfare legislation, are not given a prominent or independent position in the law.²⁰ Such a system focuses on early prevention and support to the child and the child’s family, rather than a more reactive approach, which characterizes a system focused on child protection. A family-oriented child-welfare system is primarily focused on support for the family as a whole, based on voluntary measures and collaboration as a first option and compulsory interventions as an exception. While there are organizational differences among the Nordic countries’ systems, they can all be described as family-oriented child-welfare systems. This may explain why social services also generally play a role in custody disputes.²¹ At the same time, a more recent focus on children’s rights has moved these systems in a new direction. The ratification of the CRC, which has been incorporated into national law in all the Nordic countries except Denmark (though Denmark has ratified the Convention), imprints the procedural law applicable to parental conflicts of today and has played an important role in shifting to a more child rights-based perspective.²² This has also led to a greater focus on both children’s right to participation and right to protection from violence and abuse.

Over the past couple of decades, gender equality has affected family law governing custody disputes in Nordic countries.²³ This has led to co-parenting, both in legislation and in society as a whole, as the norm in separated families. When both parents seek to take an active part in parenthood, it raises the bar with respect to what is required in terms of cooperation between them.²⁴ The emphasis on co-parenthood in law and society, and its consequences for custody disputes, is discussed in several chapters in the anthology.²⁵ Gender equality is also one of the reasons for a greater awareness of the existence of domestic violence. Research indicates that domestic violence (or alleged violence) is present in over 50% of litigated child custody cases in Sweden.²⁶

Furthermore, in Nordic countries, the corporal punishment of children of all ages is always considered illegitimate and an act of violence. The bar is very low in this regard. Even if the legislation varies among Nordic countries, the attitude towards violence, in the legal sense, can be characterized as zero tolerance.²⁷ The growing awareness of the harm caused by violence against children and exposure to domestic violence, as well as the strengthening of children’s right to protection, has affected the legislation in criminal law, social welfare law, and family law concerning custody disputes. For example, it has led to legislation that identifies violence as a serious risk factor for children when assessing the best interests of the child and impacted the attentiveness and the notion of responsibility of public welfare authorities and the courts. Therefore, the conflict between the child’s right to protection from violence and the child’s right to a close relationship with his or her parents is often the core question in a high-conflict custody dispute. These issues are addressed from various perspectives by several authors contributing to this volume.²⁸

As highlighted above, the aim to promote co-parenting and prevent parental conflicts from ending up in court has led to implementation of out-of-court resolution models to handle and prevent parental conflicts.²⁹ This has taken various approaches in Nordic countries, but a common feature is that achieving out-of-court solutions tends to be considered a goal in itself, beneficial to both children and parents. One reason for this is that bringing custody disputes before the court is believed to be associated with a risk of intensifying a parental conflict. Out-of-court dispute resolution is discussed in several contributions to the present work.³⁰

Recent decades have seen an increased emphasis on children’s rights through—for instance—the impact of the CRC. This is particularly the case for Article 12, which represents a view of children as competent agents who can participate in custody disputes. Under Swedish legislation, however, a child does not have the status of a party in custody cases. As a result, the discussion and the legislation concerning the child’s right to participate in custody disputes has focused on alternative means of enabling the child to present their views. One challenge is finding a balance between protecting the child from being drawn into the parents’ conflict, while still giving the child the opportunity to express their views, share experiences, and influence the decision. Even if children are increasingly being heard in custody disputes in Sweden and other Nordic countries, studies show that this is not always the case and that the views of children are not sufficiently considered in judicial decision-making.³¹

1.3 Structure of the Anthology

To fulfil the purpose set out above—to explore how legal proceedings in and out-of-court can be matched to the complex problems caused by, and underlying custody disputes—the present anthology brings together scholars and practitioners from different disciplines and areas of law. The contributions take historical, theoretical, and interdisciplinary perspectives and examine how the law is applied and affects children and parents involved.

In Chapter 2, Children’s Health Matters in Custody Conflicts—What Do We Know? Licensed Psychologist and Psychotherapist, Anna Norlén, provides a literature review about the interrelationships between joint custody, interparental conflict, and the wellbeing of children. This is based on a selection of recent publications from child psychology and developmental research perspectives. Norlén points to various ways in which children are affected by long-standing parental conflicts and violence and uses this knowledge as a basis for identifying the type of support needed in each case. In particular, she highlights the need for allowing a child to express and explore their feelings. The chapter concludes that the means of effectively supporting children in custody conflicts must be further developed and researched and presents suggestions for supporting the mental health and wellbeing of children in custody conflicts.

In Chapter 3, Scandinavian Perspectives on Alternative Legal Proceedings in Custody Conflicts, Anna Nylund, a professor of Procedural Law, maps and analyses the definition, purpose, and content of alternative legal proceedings in custody conflicts in Scandinavian legal systems. She discusses the fact that in Norway, Sweden, Denmark, and Finland, such proceedings take place both in court and through social services, and how there is a lack of coordination between the two instances. Expert mediators are involved in some of the proceedings, but the qualifications and methods used by the mediator are not yet defined. The conclusion is reached that the lack of clear content, role definition, and coordination results in alternative legal proceedings that do not sufficiently account for the rights and perspectives of the child.

In Chapter 4, Custody Disputes—A Socio-Legal Perspective, Annika Rejmer, an associate professor of Sociology of Law, gives an in-depth analysis of high-conflict custody disputes in court. She discusses whether the Swedish legislation efficiently caters for children’s rights and the best interests of the child in these disputes. Based on a qualitative and quantitative study of 33 Swedish court cases, this socio-legal contribution identifies and analyses the most common conflicts arising from family disputes, and whether the legal system is able to solve them. The author categorizes conflicts in custody disputes in two ways: conflicts of interest, and conflicts of value. The legal system is designed to deal with the former—concerning issues of residence, finance, time, and information. However, the system is not well-equipped to deal with the conflicts of value that dominate custody disputes: lack of childcare ability, cooperation difficulties, violence, threats and abuse, and access sabotage, among others. The author concludes that the best interests of the child remain insufficiently addressed in custody conflicts.

In Chapter 5, Children’s Participation and Perspectives in Family Disputes, Maria Eriksson, a professor of Social Sciences, examines how agency interventions in the lives of children involved in custody disputes, can become as child-centred and child-friendly as possible from a sociological point of view. The chapter is divided in two parts, the first focusing on child health in family disputes and the second on children’s participation and perspectives. The results of several empirical studies of children in contact with family-law services are presented and their implications for policy and practice are identified. On a policy level, the author contends that boundaries between family-law proceedings and child welfare are dissolved. To reach that objective in practice, the issue of children’s participation is connected to risk assessments and how to best communicate with children. The author explains how the principle of care and the principle of participation can be simplified and applied in practice to contribute to the child’s sense of security and coherence. Eriksson further argues that children’s participation can be enhanced by drawing on research of how to best communicate with the child. Finally, the contribution discusses children’s agency beyond participation, noting that the children interviewed in one of the studies emphasized their right to decide for themselves.

In Chapter 6, Mapping Paths to Family Justice: Resolving Family Disputes Involving Children in Neoliberal Times, Anne Barlow, a professor of Family Law and Policy, Rosemary Hunter, a professor of Law and Socio-Legal Studies, and Jan Ewing, a Doctor of Law, assess the extent to which the interests of the child are paramount in three types of out-of-court procedures in England and Wales. It is then discussed whether, in certain types of cases, the interests of the child are better protected through in-court procedures. The chapter is based on several empirical studies of families and mediators/lawyers involved in out-of-court procedures. The authors find that while out-of-court procedures generally are child-focused, it is less common that they are child-inclusive or that the voice of the child is reflected in the adult decision-making. Further, in the out-of-court procedure, ‘child welfare’ tends to be understood in terms of ongoing contact with both parents and co-parenting. Consequently, the protection of children from an abusive parent, risks being under-emphasized. In addition, concerns about children, in some instances, tend to be overshadowed by a problematic financial situation. Further, given there is growing evidence that many children would like to be consulted in out-of-court family dispute resolution, and that (where it is appropriate and safe), this can be a positive for children’s wellbeing. Consideration is given to how current practice in family dispute resolution fits with the rights expressed in Article 12 CRC. In conclusion, the authors find a need for distinguishing different types of conflicts and adjusting procedures accordingly.

In Chapter 7, Out-Of-Court Custody Dispute Resolution in Sweden—A Journey Without Destination, Anna Singer, a professor of Family Law, explores the development of out-of-court custody dispute resolution in custody conflicts in Swedish law and related legal scholarship. The chapter discusses the practical effects of Swedish family-law reforms and the continued efforts on behalf of the legislature, to avoid settlement of custody disputes by the courts. Mechanisms used to avoid the initiation of formal judicial proceedings are mapped, such as availability of cooperation talks (which can be initiated by both the parents themselves and by the court), mediation, and a mandatory information meeting. The author finds that the role of social services and the courts in custody disputes, as well as the responsibility they have towards one another and in relation to the parents, is not always clearly defined in the law. She further identifies a number of challenges relating to the application of the law in practice, for example, the appointment of an independent mediator, which is relied on in only 1–3% of cases. Finally, Singer argues that parents in custody disputes have problems that were not considered in the initial design of custody dispute processes: the Swedish out-of-court processes are too rigid in the sense that they only fit some of the families targeted and are not sufficiently adapted to the varying and often complex needs of a modern family.

In Chapter 8, Children’s Health Matters in Custody Conflicts: Best Interests of the Child and Decisions on Health Matters, Trude Haugli and Randi Sigurdsen, both professors of Law, address conflicts of interest that can arise when there are ongoing custody disputes and how legal instruments can be used to deal with a situation where parents disagree over a decision that must be taken concerning a child’s health. When a child is younger than 16 years, their custodians must give consent regarding health matters. The child has a right, however, to be heard, and the custodians must act in the best interests of the child. Through the analysis of several potential scenarios, the authors discuss, from a Norwegian legal context, whether parents in conflict are in fact able to act in the best interests of the child, and whether the child’s right to participation is respected. The authors conclude that the limited legal—or other—tools provided to parents and/or health institutions can lead to sole custody being the only way to solve the disagreement. The authors point out the dilemma in cases where the custody dispute or the parental conflict is the reason behind the child’s need for treatment.

In Chapter 9, Challenges When Family Conflicts Meet the Law—A Proactive Approach, Thomas D Barton, a professor of Law, analyses the prospective and therapeutic character of parental conflict from a proactive-law perspective, discussing whether and how legal proceedings could be adapted to it. The chapter starts with the premise that there is an interdependence of problems and procedures in the context of domestic relations legal issues and alternative dispute resolution mechanisms. For the author, attributes of domestic relations problems—especially child custody issues—do not fit well with the capabilities of traditional legal procedures. Yet this lack of fit between problem and procedure can be overcome and procedures improved. Using a proactive approach, the author identifies a need for acknowledging and incorporating different ways of speaking about domestic relations problems. He concludes that the legal system should supplement its traditional problem-solving methods with others.

Finally, in Chapter 10, Beyond the Horizon: Matching Legal Proceedings to the Problems in Custody Disputes, Anna Kaldal, a professor of Procedural Law and Agnes Hellner, a senior lecturer of Procedural Law, draw on the findings of the previous chapters of the anthology to discuss how the challenge of matching legal proceedings to problems in custody disputes could be further addressed in the future. The first conclusion is that the nature of and inherent causes of custody conflicts, and how parent–child relationships, children’s health, risk factors, and other aspects characterizing custody conflicts should be understood and considered in legal proceedings in and out-of-court. The second conclusion relates to the tensions between a private-law understanding of custody disputes and an understanding that relies on the best interests of the child as a starting point—especially when viewing the child as a rights-bearer. Tensions between legal structures that have been conserved, despite numerous legislative amendments, and more recently introduced legal objectives are discussed. The third conclusion relates to those challenges associated with guaranteeing the child’s own procedural rights—particularly the right to participation. Respecting the child’s right to participation ensures that the child is treated as a rights-bearer and active agent, with thoughts and ideas worth considering during decision-making. The fourth conclusion is that legal fragmentation which manifests in several ways in the law governing custody disputes and proceedings. Today, the best interests of the child is an international legal standard applicable in custody disputes, although it has been criticized for being vague. At the same time, national laws define the more precise content of the standard, with respect to both substantive and procedural law. The normative content of the law is thus defined on several levels of government. Furthermore, due to the complex nature of the conflicts underlying custody disputes, legal responses to the resulting problems take various forms and involve a wide range of agencies and courts—all with different mandates and investigational powers. The authors argue that in this legal landscape, it is essential to ensure that the application of the principle of the best interests of the child involves an individualized and knowledge-based assessment, one that integrates perspectives from several disciplines.