4.1 Introduction

This article’s objective is to explore whether court proceedings are suited to serve children’s best interests in high-level custody conflicts. The research question to be answered is whether Swedish laws regulating custody, residence, and visitation can contribute to the resolution of custody disputes in the best interests of the child. A socio-legal perspective applies, grounded in empirical data collected by a method of triangulation, of legal dogma, and qualitative and quantitative social-science method. Results are analysed based on theoretical concepts such as low-level and high-level conflicts, and conflicts of interest and value, norm, gender, class, and health. The conclusion is that the legal system is not adapted to the nature of parents’ conflict or their ability to serve the best interests of their child, which results in court decisions that cannot either.

4.2 Background

Since 2000, and over the last two decades, lawsuits addressing custody, residence, and visitation have steadily increased in Sweden.Footnote 1 In an effort to reverse this trend, there has been legislative reform, and alternative handling methods introduced. Despite these measures, however, and with the exception of the pandemic period when the number of cases stopped growing and even decreased, custody cases are still on the rise.Footnote 2 By the age of 17, 33% of children will have experienced parental separation,Footnote 3 while 6% will also have experienced a parental battle in court over custody, residence, and visitation.Footnote 4 In addition, almost half of these children will have experienced repeated litigation—indicating that the courts have limited powers to serve children’s best interests in custody disputes.Footnote 5

4.3 Aim

With reference to the background presented above, this article aims to explore the nature of custody disputes, and whether Swedish legislation is adapted to ensure children’s best interests in cases of parental conflicts regarding custody, residence, and visitation.

4.4 Method

The empirical data presented here was collected in the socio-legal research project: High-Conflict Families of Divorce—A Survey of Parents, Their Custody Dispute and an Impact Analysis of Three Handling Models.Footnote 6 Using a combination of legal dogmatic and social-science methods including quantitative and qualitative studies, qualitative methods contribute to a visualization of the argumentation from both parents and professionals, while quantitative methods provide an overview and demonstrate patterns.

The qualitative studies consist of a content analysis of 33 randomly chosen district court case files, including 33 summons applications, 28 statements of defence from parents, 26 rapid information inquiries (snabbupplysningar), and 4 social services (socialtjänsten) family-law unit custody investigations (vårdnadsutredning). The documents represent the authorities’ views on the conflict. To include the parents’ view, the content analyses were supplemented with in-depth interviews from 48 randomly chosen parents who were involved in a high-level custody dispute.Footnote 7

To obtain background information regarding parents in custody disputes and to search for patterns, a quantitative content analysis was conducted on 413 summons applications and 33 district court acts. To include parents’ perspectives, the content analysis was supplemented with a survey to which 202 parents responded. Participating parents were parties in ongoing, high-level custody disputes in a representative sample of district courts.Footnote 8 A drop-out analysis revealed that primarily middle-class parents of Swedish origin participated in the survey.

The results from the quantitative studies were processed statistically, while the results from the qualitative studies were processed hermeneutically. The results were also compared with applicable law to determine the extent to which legislation fulfils children’s best interests in custody disputes from a parental perspective. Traditional legal dogmatic method, legislative history, and case law were used to explore applicable law. The results of the comparison were analysed using such theoretical concepts as: low- and high-level conflict, conflicts of interest and value, norms, class, gender, health, and violence.

4.5 Custody Disputes—A Conflict of Interest and Values, or Passivity and Activity?

Under Swedish law, custody disputes are brought before the district court. Family law provides that the court has an obligation to align its judgement with the best interests of the child. Therefore, the court can go beyond the claims of the parties and investigate the case more extensively than in other civil cases. In practice, the investigation is normally carried out by the social services, which assist the court by conducting investigations upon request.

Legislation on courts’ handling of conflicts originates in resolving conflicts of interest between parties. However, most of these cases include elements of both conflicting interests and conflicting values.Footnote 9 A conflict of values originates from differing opinions about facts and values. Usually, it is difficult for one of the parties to impose a change of opinion on the other; therefore, a third party—such as a court—must decide how to solve value-based conflicts.Footnote 10 Conflict of interest is about opposing demands on a scarce resource, and is usually resolved through mediation and compromise because neither of the parties is willing to risk a total loss.Footnote 11 Custody disputes are categorized as a conflict of interest when the parents disagree on matters relating to time with, care of, and information about the child, and as a conflict of values when parents disagree on what is best for their child and question the other party’s parenting ability.

The empirical results show that it is not sufficient to simply analyse custody disputes as a conflict of interest and values. Half of the examined summons’ applications can be characterized as low-level conflicts.Footnote 12 These situations usually arise when one parent is passive in exercising joint custody, which makes it legally impossible for the other parent to change residence with the child, obtain a passport for the child, choose schools, and meet the child’s health and medical care needs.Footnote 13 In these conflicts, sole custody is the only solution for creating a functioning everyday life for the child. Low-level custody disputes are unlikely to increase the negative impact on the child and are usually handled as administrative cases by the court.

The remaining cases involve high-level conflict. The parties actively pursue the matter and obtain support from legal representation, and the suit often results in appeals and repeated litigation; this has a negative impact on the child. High-level custody disputes apply predominantly to underlying, value-based conflicts about parties’ ability to parent or cooperate due to drug problems, mental disorders, or domestic violence.Footnote 14

To sum up, half of all custody disputes are actively pursued and can be characterized as long-lasting, high-level conflicts about values, and thus increase the probability of a negative impact on parties’ children.Footnote 15

4.6 Parents in High-Level Custody Disputes

Concepts such as norms and gender can be used to analyse the behaviour and actions of parents engaged in high-level conflicts on custody disputes rooted in their disagreement about values. When considering gender, it is interesting to note that the Swedish political definition of gender equality is 60/40%.Footnote 16 The concept of gender relates to social-behavioural expectations placed on mothers and fathers and is created by day-to-day interplay and practice; it is constantly reproduced and creates social norms regarding acceptable characteristics, behaviours, and actions of mothers and fathers.Footnote 17 Formal norms are created in a politically authoritative order. Social and legal norms do not necessarily correspond to each other but can exist side-by-side in society.Footnote 18

The results of conducted empirical studies show that mothers (60%) are more often the initiators of court proceedings in high-level custody disputes. They sue for sole custody, residence, and a limitation of visitation for fathers. Fathers (40%) sue for sole custody, joint custody, residence, and extended visitation. Based on the claims studied here, it seems that mothers seek to minimize fathers’ contact with and influence over joint children, while fathers seek to maintain contact and involvement with joint children. Differences in legal and social norms can explain the results; only 6% of mothers and 1% of fathers obtain sole custody.Footnote 19 Joint custody is assumed to be in the best interests of the child and has become the legal and social norm.Footnote 20 The child’s residence and visitation, however, is not gender-equal. For instance, 60% of children with separated parents live full-time or mostly with their mothers, and only 10% live with their fathers, while 30% have an alternate residence.Footnote 21 The social norm for female caregivers still dictates the organization of the divided family.Footnote 22

The empirical studies of court case files show that high-level custody disputes are also a matter of class, when the concept of class is defined in terms of education and income.Footnote 23 Viewed from this perspective, most of the parents involved in custody disputes are working-class.Footnote 24 The results indicate that these parents usually have complex, problematic life conditions rooted in immigration and assimilation, unemployment, health problems, abuse,Footnote 25 and violence that increase the socio-economic vulnerability of the family.Footnote 26

It is interesting to note, however, that one-third of Swedish parents in high-level custody conflicts are middle-class.Footnote 27 Unlike working-class parents, they are often eager to participate in interview studies and surveys; therefore, knowledge about middle-class parents in custody disputes is in-depth and extensive. Among these parents, there is an overrepresentation of adult children of divorce. A majority of parents have experience of growing up with separated parents in conflict and sporadic or no contact with the non-resident or non-custodial parent.Footnote 28 The results indicate that half of the middle-class parents in high-level custody disputes repeat their own parents’ patterns of dealing with conflicts—and that to some extent—custody disputes are a socialized behaviour.

From a health perspective (defined as a lack of perceived ill health), most middle-class parents in a high-level conflict state in interviews and surveys that they are dealing with additional life crises in connection with the custody dispute. They have experienced reorganization at work, unemployment, accidents, personal health issues, or the illness or death of relatives.Footnote 29 The results also show that almost all middle-class parents experience increased levels of stress due to the conflict, often accompanied by depression, anxiety, and sleep disorders.Footnote 30

Furthermore, a majority state they suffer from diagnosed illnesses and disabilities. In addition to somatic diagnoses, 14% of mothers state that they have been diagnosed with mental health problems, while the corresponding proportion among fathers is 5%. Moreover, 10% of parents state that they suffer from a disability that affects their everyday life.Footnote 31 Additionally, 5% of the parents state they have a neuropsychiatric diagnosis, which is an overrepresentation compared with the occurrence in the adult Swedish population (3%).Footnote 32 The result likely underestimates the situation; 16% of the parents state that their children have a neuropsychiatric diagnosis, which is typically a hereditary disability.Footnote 33 According to the survey and interview study, few of the middle-class parents consider themselves as having problems with addiction.

The Istanbul Convention—Action against violence against women and domestic violenceFootnote 34 provides a definition of violence that covers acts of physical, sexual, psychological, and economic violence between family members. Based on that definition, all investigated high-level custody disputes involve some kind of violence.Footnote 35 MothersFootnote 36 were primarily subjected to physical violence, while fathers were subjected to psychological violence, and their children were exposed to a long-lasting parental conflict with a negative impact for life.Footnote 37

To sum up, the results indicate that the underlying causes of high-level conflicts are—to some extent—class-related. Working-class parents are turning to the courts more often than middle-class families, due to a complex life situation and socio-economic vulnerability, while middle-class parents seem to struggle with the socialized behaviour of interparental conflict, life crises, and ill health.

4.7 Custody Dispute—A Question of Paradigm?

The social phenomenon of custody disputes emerged in the latter half of the 1970s as an effect of Sweden’s political goal of gender equality, and several political measures were taken in this regard. It became much easier for women to earn wages and become self-sufficient. An expansion of the welfare state created jobs for women. The government also reformed legislation on child custody and visitation, with gender-neutral provisions that increased opportunities to initiate custody disputes in court. Furthermore, new provisions were introduced to enable joint custody for divorced parents. The idea was that fathers would take their share of parental responsibility, thus allowing mothers to work and be self-sufficient, but the legislation did not address any specific concerns about parenting ability.Footnote 38

Sweden’s ratification of the Convention on the Rights of the Child (CRC) contributed to a shift in the family-policy paradigm from an objective of increased gender equality to realizing children’s rights and best interests. This paradigm shift influenced several legislative reforms. In 1991, the provisions of the Social Services Act were reformed, assigning social services an explicit responsibility to follow up those cases where children were exposed to custody disputes.Footnote 39 Nevertheless, an evaluation by the National Board of Health and Welfare shows that Swedish social services do not conduct follow-ups. One reason could be, that according to the law, guardians must consent to a follow-up.Footnote 40 In 1993, the court was obliged to take into account the risk of children being abused, illegally abducted or detained, or otherwise harmed, when considering the best interests of the child in custody disputes.Footnote 41 The provision is designed to identify parents who pose a risk to their child. Evaluations show that risk assessments carried out, both by the social services family-law units and the district courts, vary in content due to different methods and definitions of risk. The social services’ starting point is a social-science perspective, while the court assesses the matter from a legal perspective.

In 1998, the legislator stated that the best interests of the child should be paramount in determining all matters of custody, residence, and visitation, and that joint custody was to be considered the best solution for children—irrespective of the parents’ relationship. The reform contributed to a redefinition of a custody dispute, shifting it from a conflict of interest to a conflict of values.Footnote 42 The court’s main task was now changed to determining which parent could serve the child’s best interests.

The latest legal reform of the courts assessment of the child’s best interests in custody disputes dates from 2020, when the CRC was incorporated into Swedish law.Footnote 43 The best interests of the child shall be a guide in accordance with the provisions of both the Children and Parent Code and the CRC, but these instruments are not fully harmonized. According to the Children and Parent Code, authorities must provide for the best interests of the child, while Article 3 CRC stipulates a primary consideration and Article 18 CRC provides that parents as well as authorities are obliged to ensure the best interests of the child.Footnote 44

In summary, despite Sweden’s ratification of the CRC, the paradigm shift in Swedish legislation has not yet been completed. Implementation of the CRC deficiencies consist of material but foremost procedural provisions. There seems to be a lack of holistic perspective with its handling; a validation of the legislation to secure a coherent normative system that can ensure the best interests of the child in custody disputes.Footnote 45

4.8 Procedural Law—An Overlooked Legal Aspect

Since Sweden ratified the CRC, legislative work has focused on adapting the substantive provisions of the law, while the procedural provisions have been overlooked.

The handling of custody disputes in court follows Swedish civil-law procedure.Footnote 46 The district court’s primary task is to get parents to agree, through mediation, on the child’s best interests and ratify the agreement in a judgement—with 65% of custody disputes resolved in agreement.Footnote 47 The documentation that the courts use to determine the best interests of the child consists of information from the social services.

If it is not possible to achieve an agreement, the district court must ensure that the custody case is sufficiently investigatedFootnote 48 and that a judgement is based on what is best for the child. At the request of the district court, the social services’ family-law unit contributes documentation for assessing the child’s best interest. If necessary, the district court can request a rapid information inquiry to make interim decisions or initiate a custody investigation.Footnote 49

To fulfil its investigative obligation, the social services’ family-law unit has the legal support to take on investigative measures. Investigators can search three different registries: authority registries, records of suspected offenders, and criminal records. Personal information and information on measures taken are included when parents or their new partners are registered in the authorities’ registries. If parents or their new partners appear in the criminal registry, the family court can obtain information about whether the parents or their partners are suspected of a crime and if they have committed crime abroad.Footnote 50 In addition, the criminal registry offers investigators information about whether the parents or their partners appear in judgements, decisions, and criminal injunctions, and whether they have been given compulsory care for substance abuse (and therefore have not been subject to criminal prosecution). The registry also contains information about whether the parents are subject to a restraining order.Footnote 51 The registries are kept for statistical purposes and do not address a child’s rights or best interests, or adults’ parenting skills; therefore, the information must be interpreted and placed in the context of custody disputes.

Furthermore, since 1 July 2021, the social services’ family-law unit has the right to speak with children without guardians’ consent.Footnote 52 It is still questionable if the provisions of the Children and Parent Code harmonize with Article 12 CRC, which provides the right of children to be heard in all matters affecting them. Investigators at the family-law unit decide on the individual child’s right to be heard, not the parents. According to the Children and Parent Code, the child does not yet have an independent right to receive information or to be heard in custody disputes.

Parents decide which investigative measures the family-law unit may take; for example, parents must consent to investigative interviews and home visits. The parents’ consent is also required in the selection of reference persons with a professional relation to the child, such as teachers, and to allow investigators access to the child’s and parents’ medical records. Any non-parent guardian in the matter must also consent to allow investigators access to the child’s medical records. Thus, as custodians, parents control what information the family-law unit can see and thereby the extent to which value-based conflicts can be investigated. At the same time, the proceedingsFootnote 53 lack incentives for parents to be open about their problems. Such information could be used against them during the trial, and this aspect is characterized by a risk perspectiveFootnote 54 rather than a supportive service perspective as stipulated in Article 18 CRC.

4.9 Can the Court Fulfil the Best Interests of the Child in High-Level Custody Disputes?

The results of empirical studies show that custody disputes are not homogeneous in character. A better understanding of parental conflicts requires a categorization into low- and high-level conflicts. Low-level conflict disputes are unlikely to have further negative impact on children, but high-level conflict disputes are lengthy and harmful to children and can be categorized as either a conflict of interest or conflict of values.

Conflicts of interest usually involve issues of visitation, child support, and information about the child, and are often mediated and resolved through compromise. Conflicts of values concerning parenting skills are more difficult to resolve; this can be explained by parents’ refusal to consent to a reasonable investigation of value-based conflicts or insufficient investigation of accusations regarding the other parent’s personal problems or lack of parenting ability.

Can Swedish legislation satisfy children’s best interests in custody disputes? The dogmatic investigation of applicable law shows that children’s rights can be fulfilled through the district courts’ application of the CRC, which is also Swedish law. On the other hand, the Children and Parent Code—a law that specifically regulates custody, residence, and visitation—should be reformed to harmonize with CRC.

The empirical results show that current provisions do not allow sufficient investigation of the target group’s need for support. They also show that the handling of these disputes must be developed to meet the needs of the target group. Mediation, agreements, and judgements cannot eliminate underlying problems such as poverty, ill health, abuse, violence, or parents’ disabilities.

The results indicate that custody disputes are a complex phenomenon, requiring inter-professional management to meet parents’ specific needs, so they can in turn fulfil their children’s best interests. Current legislation does not allow inter-professional handling of custody disputes; therefore, the law should be reformed, primarily in the context of custody disputes, to ensure children’s best interests.