Beyond the Horizon: Matching Legal Proceedings to Problems in Custody Disputes

Abstract

Finding a good match between legal proceedings and the problems they will be used to address, is by no means a new challenge. The complexity of custody disputes—the variations in underlying factors, the child’s individual needs, experience, and views, and the health and life circumstances of the parents—can make the challenge seem overwhelming. Therefore, rather than diving into the details of the law applicable to custody disputes, the present anthology seeks to address broader perspectives, and look for new ways forward, perhaps beyond those set out in current laws.

10.1 Introduction

Finding a good match between legal proceedings and the problems they will be used to address, is by no means a new challenge.¹ The complexity of custody disputes—the variations in underlying factors, the child’s individual needs, experience, and views, and the health and life circumstances of the parents—can make the challenge seem overwhelming. Therefore, rather than diving into the details of the law applicable to custody disputes, the present anthology seeks to address broader perspectives, and look for new ways forward, perhaps beyond those set out in current laws.

Specifically, the contributions to this edited volume have explored how legal proceedings, in and out-of-court, can be matched to the complex problems underlying custody disputes, or resulting from legal proceedings aimed at solving them. In fulfilling its aim, this anthology illuminates aspects of both, the reality facing children whose parents are in conflict, and legal responses to family conflicts. The varying chapters illustrate that the topic has many faces, but as the pieces are brought together, it is possible to draw several conclusions.

The first such conclusion is that the specific nature and the underlying causes of custody conflicts are often not sufficiently considered in legal proceedings (further addressed in Sect. 10.2). In various ways, the chapters of Norlén, Eriksson, Rejmer, Singer, and Barton, each emphasize how parent–child relationships, children’s health, risk factors, and other aspects that could be described as characterizing custody conflicts, must be understood and considered in legal proceedings, whether they take place in or out-of-court.²

The second conclusion is that there are tensions between a private-law understanding of custody disputes and an understanding of custody disputes that relies on the best interests of the child as a starting point (Sect. 10.3). Rejmer and Singer, in particular, point out the historical development of the Swedish law on custody, and the shift that has taken place with regard to seeing the child as a rights-bearer. Singer’s mapping of the stepwise development of the law helps us to understand current challenges.³ These and other contributions suggest that tensions exist between the legal structures which have been conserved, despite numerous legislative amendments, and the more recently introduced legal objectives.

The third conclusion is that challenges associated with guaranteeing the child’s own procedural rights, particularly the right to participation, persist (Sect. 10.4). Respecting the child’s right to participation is a means of ensuring that the child is treated as a rights-bearer and active agent, with thoughts and ideas worthy of consideration in decision-making. However, several of the authors contributing to the anthology, point out that the implementation of the right to participation is lacking in several respects.

With the fourth and final conclusion, we draw from the discussions in the preceding chapters, that fragmentation shapes the law governing custody disputes and proceedings in various ways (Sect. 10.5). One way in which fragmentation shapes the law lies in how and from where it derives its normative content. Today, the best interests of the child is an international legal standard, applicable in custody disputes, but it has been criticized for being vague and difficult to apply. At the same time, national laws define the more precise content of the best interests of the child, both with respect to the substantive and procedural law. The normative content of the law is thus defined at several levels of government. It can be argued that the procedural law structures and other legal responses in place to tackle custody disputes are themselves fragmented: they take very different shapes and involve a wide range of agencies and courts. In this legal landscape—which spans several areas of law and multiple agencies with different mandates and investigational powers—the principle of the best interests of the child requires an individualized and knowledge-based assessment, which necessitates competence from several disciplines and professionals. In the following, we draw on the findings of the previous chapters of the anthology and elaborate on the above-outlined conclusions.

10.2 The Importance of Considering the Nature of Custody Conflicts in Legal Proceedings In and Out-of-Court

When considering how to implement legal proceedings that minimize the negative effects of custody disputes and optimize positive outcomes for children and their families, a basic starting point is to examine the nature of the conflicts underlying such disputes. This may appear evident, and perhaps even a superfluous point to make, but as the contributions to this edited volume clearly illustrate, it is in fact a challenging and complex task. As Barton describes, the substance matter of a custody dispute has an intimate and emotional character. It affects the parties’ most important personal relations—relations that will continue long after the parties leave court.⁴ Norlén and Singer point out that we know too little about the needs of the parents and their children and the problems they have.⁵ Nevertheless, Norlén gives an overview of the knowledge that is available. Several factors characterize families that are going through separations and custody disputes. One such factor is emotional stress and parental worries about their and their children’s future. Another factor is the negative effects that custody disputes have on the child’s life and health.⁶ There is also an overrepresentation of underlying causes, such as domestic violence, neglect, or abuse, and a great deal of underlying problems such as health concerns, unemployment, and substance abuse.⁷

The idea of adapting procedural mechanisms to the substantive-law context in which they will be applied is not new.⁸ Rules of procedure affect how substantive law is applied, and therefore the extent to which it succeeds in reaching its objectives.⁹ A very basic example of how procedural law has been designed to reflect substantive law, is private-law proceedings. In short, a traditional understanding of a commercial private-law dispute is that the primary aim of the dispute is to resolve a conflict between the parties. Since substantive law leaves it to the individual to freely enter into a contract, or otherwise reach an agreement, procedural law should also not interfere. In Swedish civil procedure, the basic point of departure is that the claims of the parties define the boundaries of the procedure, and the court has no mandate to investigate the substance matter of the case on its own motion; rather, the judge should remain passive.¹⁰ In other words, the court has no duty to decide in accordance with what it considers is in the best interests of the parties or even a third party. This also explains why solving private-law issues out of court has a long tradition, especially in commercial-law disputes; the benefits are numerous, such as avoiding expensive legal proceedings and negative publicity or preserving a business relation.¹¹

Similarly, as illustrated by Rejmer and Singer, Barlow, Hunter, and Ewing as well as Nylund, adjustments in existing private-law proceedings have been made to handle the specific character of custody disputes.¹² However, such amendments have often been made without previous research or follow-up evaluation. It seems clear that procedural mechanisms, whether in or out-of-court, remain insufficiently geared to the situations in which they are to be applied.

Both in and out-of-court custody proceedings aim to achieve an outcome according to the best interests of the child. However, this assessment is individual and must take all aspects of the child’s situation into account. The variations of underlying problems and individual circumstances related to the child and his or her parents, require the availability of a variety of approaches and procedures. The importance of having thorough knowledge about the needs of parents and children in custody disputes, in order to develop efficient dispute resolution models, is echoed among the authors of the present anthology.

In some cases, in-court proceedings could be the most fitting way of handling the dispute.¹³ Where there are indications of domestic violence, abuse, or other risk factors, these aspects must be properly investigated in a manner that fulfils due-process requirements. In such cases, the court decision might limit parental rights and fundamental rights to privacy and family. As pointed out by Barlow, Hunter, and Ewing, power imbalances between parents resulting from violence or threats must also be investigated and considered.¹⁴ To be able to address the custody conflict in question, the court must have a nuanced picture of the specificities of the individual case.

In addition, where out-of-court dispute resolution appears to be an option, the nature of the conflict must be properly considered to be able to navigate between different procedures and other approaches that are available. As argued by Nylund, it is crucial to examine whether parents need therapeutic treatment or other types of support, rather than mediation, in the individual case.¹⁵ Different approaches and procedures might be suitable at different points in time, or it might be helpful to combine several approaches. A conscious and careful match between a specific approach or procedure and the nature of the conflict in the individual case, could potentially reduce negative effects of custody disputes on the parents and children involved.

10.3 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

In line with the shift to viewing children as individuals with their own rights, the principle of the best interests of the child is the standard according to which custody disputes must be decided.¹⁶ The principle includes several aspects: acknowledging that the child’s right to both parents, right to protection, and right to participation are paramount in custody disputes.¹⁷ Applying the principle of the best interests of the child requires that both short- and long-term consequences for the child are considered, and a qualitative and individualized investigation of all relevant elements.¹⁸ Against the backdrop of the great public interests at stake, one could actually find it surprising that custody, residence, and contact for children are generally matters governed by private law and that disputes are resolved under rules of civil procedure.¹⁹

Much as a result of the shift in how children are perceived, custody disputes can now be described as ‘atypical’ private-law procedures. Unlike other private-law proceedings, the main aim of a court proceeding concerning custody, is not to decide what is proven according to the claims of the parties or to settle the dispute between the parties, but to reach an outcome that is in the best interests of the child.²⁰ Arguably, this standard, reflective as it is of a general public interest, adds a public-law dimension to the dispute. This in turn motivates a court proceeding that is not strictly accusatory, but one that has inquisitory traits, such as the judge’s extended responsibility for investigating and even deciding beyond the claims of the parties/parents.²¹ Ultimately, this can mean investigative measures that go far beyond what would otherwise be expected from a judge in private-law disputes. Furthermore, an outcome according to the best interests of the child is a prospective assessment and therefore differs from retrospective assessments that otherwise dominate private-law proceedings.²²

Contradictory court proceedings, such as those applicable to private-law disputes, come with certain consequences. First, as brought to the fore by both Rejmer and Singer, the applicant must prove the claim, which in custody disputes means that the parents must show that the respondent—the other parent—is unfit.²³ Consequently, the court proceeding lacks incentives for parents to be open about their problems. The dichotomic character of the ruling—one party wins and the other loses—also risks not only prolonging the conflict but intensifying and deepening it. It also involves a risk of working against a transparent and robust investigation.²⁴ In addition to this, Rejmer argues that, unlike parties in other private-law disputes, parents in custody disputes most often do not fight over resources that can be divided between them. The contested matter typically relates to a question of values concerning a parent’s ability or suitability. Such deeply personal and emotional matters conflict with the basic idea behind private-law disputes, according to Rejmer.²⁵

In Nordic countries, co-parenting is put forward as an aim of family law.²⁶ The aim of co-parenting when parents live apart interacts well with the child’s right to both parents. This aim is mirrored by procedures seeking to keep parents out of court, and promoting agreements between them, typically regarding co-parenting and shared custody.²⁷ However, doing so places significant demands on parents’ negotiation skills and capacity for cooperation, and requires society to provide adequate support. But if this support is lacking, then both legislation where co-parenting is the goal, and social and legal institutions’ approaches, risk worsening the situation by leaving the family and the child without adequate support or imposing a decision that is not in the child’s best interests.²⁸

In Nordic countries, but also in England and Wales, resolving parents’ conflicts out of court seems to be a shared ideal and generally considered to be in the best interests of the child.²⁹ However, also with respect to out-of-court dispute resolution, the understanding of custody disputes as private-law disputes appears to involve certain risks. First, out-of-court dispute resolution runs the risk of being seen as ‘the good’ method for dispute resolution, if it is simply contrasted with (dysfunctional) court proceedings, because of its non-adversarial nature that reduces conflict and restores autonomy to the parties.³⁰ As already argued above in Sect. 10.2, court proceedings are the preferable means of resolving a dispute where there are indications of violence, abuse, or other risk factors. Second, it is worth considering that out-of-court dispute resolution mechanisms were often originally developed for commercial legal disputes, that is, private-law disputes of a very different nature than custody disputes. Most out-of-court dispute resolution models are primarily constructed to handle problem-solving with two rational parties, possessing good parenting capacity and the ability to agree on outcomes that are in the best interests of the child.³¹ Considering the deeply intimate, personal emotional nature of custody conflicts and the causes underlying them, to assume rationality, negotiating skills, and an ability to agree, might be expecting too much of parents.³² At worst, the ambition to reach an amicable settlement might be in direct conflict with the best interests of the child.

Mediation is the most established form of out-of-court procedure in the context of custody disputes. It is designed to allow parties to reach an amicable settlement of the dispute with the assistance of a third person. The mediator has no authority to impose a solution upon the parties, and the process lacks a system for gathering information and for enabling the parties to argue their cases. In other words, mediation differs sharply from the inquisitory court proceeding. In contrast to the judge in a court proceeding, the mediator lacks a mandate to investigate the case or go beyond what the parties agree on; suggestions by the mediator might well be based on erroneous assumptions.³³ A dispute resolution model based on a drive to reach an agreement can result in decisions that are neither sustainable, nor in the best interests of the child. If the parents are incapable of reaching an agreement that is in the best interests of the child, then a mediation proceeding does not fit. This dilemma has not always been taken into consideration during the development of legislation or out-of-court models, with the consequence that out-of-court dispute resolution has not been as effective as expected.³⁴ Access to alternative methods, of a more or less therapeutic character, led by a lawyer, a therapist, or a social worker, could be a solution when choosing a proceeding. Doing this, however, would require a diagnostic tool to identify the nature of the problem.

However attractive out-of-court dispute resolution might seem from the perspective of the child’s right to both parents, it is crucial that risk factors are not left unidentified. Similarly, although private-law experiences of out-of-court dispute resolution provide valuable insights that have informed the emergence of out-of-court solutions in the context of custody disputes, it is important not to forget that custody disputes have a public-law dimension that commercial private-law disputes typically lack. The will to promote an agreement between the parties should not be allowed to overshadow the best interests of the child.

There are challenges with the out-of-court resolutions, such as, whether and how the child should be included in the proceeding.³⁵ This point will be addressed further in the next section.

10.4 Ensuring the Right to Participation Remains a Challenge

One understanding about the introduction of the CRC, is that it reflects a shift towards increasingly recognizing children as autonomous individuals and rights holders.³⁶ The right to participation, enshrined in Article 12 CRC, is one means by which the respect for the child as an active agent can be ensured.³⁷ Furthermore, according to the principle of the best interests of the child, state parties are obliged to introduce means of hearing the child and that their view is given due weight in accordance to the child’s age and maturity.³⁸

Several chapters of the present anthology show that the implementation of the right to participation presents challenges in the context of custody disputes, both in and out-of-court.³⁹ Even if children are increasingly being heard in custody disputes in Sweden and other Nordic countries, several studies show that children are not always heard, or their view has not informed the decision.⁴⁰ For example, there is research that indicates the child’s view is not given weight in the decision if it doesn’t coincide with the aim of a close contact with both parents.⁴¹ There are several reasons why children are not heard, or why their views are not given consideration in custody disputes. Judges or other decision-makers might seek to avoid the child’s exposure to the parents’ conflict, undue influence from one parent over the child, or a situation where the child feels pressure to choose one parent over the other.⁴² Studies show, however, that children want to be heard and taken seriously in custody disputes, even if they do not always want to decide the outcome.⁴³ As Eriksson points out, the desire to have a say in a custody conflict seems even stronger among children who have experienced violence.⁴⁴ The challenges with respect to guaranteeing the right to participation could be the reason why the Committee of the Rights of the Child argues in favour of independent legal representation for the child in relation to the child’s custodian, when a potential conflict of interest exists between the child and their parents.⁴⁵

So far, child participation in out-of-court-proceedings has been addressed in research only to a limited extent. Indeed, ensuring the right to participation seems to be especially challenging in mediation, and the child’s view is rarely reflected in the decision.⁴⁶ One explanation for this could be that an agreement between the parents is presumed to be in the best interests of the child; therefore, including the child’s view is not necessary. At other times, involved parties may believe that excluding the child’s view protects the child from unnecessary investigative measures.⁴⁷ This, however, conflicts with Article 12 CRC. It also seems to conflict with an understanding of the child as a person able to comprehend and process the complex situation.⁴⁸ On top of that, as shown in research, many children would like to be consulted both in custody disputes, and out-of-court family dispute resolution. Inclusion (where appropriate and safe) can have a positive effect on children’s wellbeing.⁴⁹ Furthermore, a high degree of participation can contribute to a more sustainable outcome.⁵⁰ The child’s age does have implications, but even if children might not always have the capacity to grasp complex situations, they have the right and are often able to contribute thoughts, opinions, and ideas about how their everyday life should be arranged.⁵¹

One possible explanation for the difficulties of implementing the child’s right to participation, is that this carries with it a childhood image not yet fully reflected in the national private law applicable to custody disputes. Further, the procedural-law consequences of understanding the child as a person with thoughts and ideas worth considering in decision-making does not yet seem to have taken a clear and tangible shape. If this is indeed the case, it is a criticism that is similar to some of the findings presented in Sect. 10.2, such as that of Rejmer, suggesting that current procedural-law settings are not sufficiently adapted to the nature of custody conflicts—rather, they suit more typical private-law disputes.

Children’s right to participate raises specific demands on any legal proceeding, in or out-of-court, which deal with parents’ conflicts regarding children. In addition, the child’s experiences and thoughts about alternative outcomes are crucial pieces of information for assessing what is in the best interests of the child; and are noted as a requirement for fulfilling the child’s substantive right according to Articles 3 and 12 CRC.⁵² The legal proceeding, therefore, must balance the interests in protecting the child from being drawn into their parents’ conflict, while giving the child the opportunity to express their view and influence the decision. One concrete way of facilitating such a balancing of interests is to develop protocols for interviewing the child.⁵³

10.5 Fragmentation Shapes the Law Governing Custody Disputes and Proceedings

The fourth conclusion we draw from the discussions in the foregoing chapters, builds on themes that are less articulated and more difficult to grasp, yet nevertheless are reflected in the contributions to the present work: fragmentation shapes the law governing custody disputes and proceedings. First, the law governing custody disputes can itself be described as fragmented, in the sense that it is derived from both international law and national law. It involves complex factual assessments that sometimes require expert knowledge from other authorities. Second, the law and legal decision-making processes that come into play when parents are in conflict, can be described as fragmented in the sense that they involve various branches of law (for example, family law, social law, procedural law, and public law) and multiple agencies and courts. These two aspects of fragmentation are discussed below.

The first aspect of fragmentation relates to the structure of the law applicable to custody disputes. The principle of the best interests of the child is now the international standard applicable in custody proceedings at national level. Due to its open-ended, vague, and flexible character, the standard leaves scope for implementation and interpretation. Its more precise normative content is derived from legal sources at different levels of government.

The principle of the best interests of the child is not only a rights-based substantive principle but also a rule of procedure. The Committee on the Rights of the Child does not elaborate on this aspect of the principle in custody disputes, but states that applying the principle requires a qualitative and individualized investigation of all relevant elements and, if possible, by a multi-professional team, and includes the child’s own view.⁵⁴ The principle is therefore an individualized and knowledge-based assessment that requires information about the individual child.⁵⁵ The Committee emphasizes the importance of research when assessing what is in the best interests of younger children, and giving older children influence in the decision.⁵⁶

The vagueness of the principle of the best interests of the child has been criticized for not giving enough guidance with respect to how it should be applied in individual cases, and for leaving scope for a paternalistic approach.⁵⁷ As a consequence of the indeterminate meaning of the principle, the line between ideological aspects and a knowledge-based assessment of a situation is at risk of being blurred.⁵⁸ Available research, and knowledge of what is in the best interests of the child in terms of custody, residence, and contact, can be both complex and confusing. The variations in underlying factors, the child’s individual needs, experience, and views, and the health and life circumstances of the parents can be manifold.⁵⁹ The more vague the aim of the substantive law, combined with the complexity of the factors that come into play in the individual case, the greater the effort needed to develop proceedings for how to achieve the aim of the law. As a result, assessing the best interest can require competence from several disciplines and professionals. This brings us to the second aspect of fragmentation in the context of custody disputes and proceedings.

The need for support and protection when parents are in conflict can come in different forms. Due to the complexity of problems underlying custody conflicts, the legal responses to them take different shapes. In Nordic countries, the law also allocates responsibility to various agencies and courts, in such a way that parents and children may think that the support offered is fragmented. The Committee of the Rights of the Child states that when the substance matter concerns physical or psychological abuse from a parent, any judicial involvement should be coordinated and based on an integrated approach across sectors, facilitating access to the full range of caregiving and protection services available.⁶⁰

In Nordic countries, child protection is normally regulated in the field of social law and handled by child protection agencies.⁶¹ In custody disputes where the situation implies a risk to the child—typically high-conflict cases where there are indications of violence or abuse—legislation in several areas of law is supposed to interact, ensuring protection of the child. In the Swedish example, this means that, whereas family law regulates custody, residence, and contact, social law is intended to ensure the child’s right to protection and support. It has been pointed out, that the legislation and allocation of administrative responsibility regarding family-law matters and child protection are fragmented and uncoordinated.⁶² The consequence is, not only that the definition of violence, abuse, and maltreatment, the standard of proof, and the investigative tools vary, but that the child can be subjected to several investigations with different aims that subsequently lead to different outcomes.⁶³ From a strictly legal point of view, application of the law may be technically correct, but from a child-oriented perspective, the outcomes can be confusing and unclear, and in the worst case, they can put the child at risk. Risk assessment concerning a child’s situation in their family also places stringent requirements on investigative tools to obtain sufficient information, expertise to assess the child’s situation, and means of fulfilling the child’s need for protection and support. In Sweden, this is normally the responsibility of the social services, who have the legal means to investigate, give support, and if needed, intervene in the life of the child or the family. Different definitions of violence and risk in the different legal contexts, as well as different investigative legal tools and methods, can lead to outcomes and parallel processes that are not only confusing for parents and children, but also affect the child’s rights to protection.⁶⁴ Eriksson has emphasized the need for coordination and softening of legal and organizational bonds between these proceedings.⁶⁵

Fragmentation in law and agency responsibility has an impact on the preventive out-of-court resolution models. Eriksson has emphasized the need for coordination and softening of legal and organizational bonds between social law and family law in order to adequately meet the needs of children and their families.⁶⁶ Similarly, Nylund has underlined the importance of differentiating between various out-of-court resolution models, to adjust the services to the needs of the individual family, and to provide processes and outcomes that are in the best interests of the child.⁶⁷ Enhanced collaboration between responsible social service agencies and courts involved could make this possible.

10.6 Final Words: Beyond the Horizon

Matching proceedings to problems in custody disputes is a complex endeavour. This anthology represents one step towards broadening the perspectives on the issue. A lot remains to be said and done. As the contributions to the volume show, further research and development, concerning both the problem underlying proceedings, and how new models work out in practice, is necessary. The needs of children and their parents will not adapt to the proceedings. Rather, procedural law must be adapted and institutional boundaries overcome, to meet their needs. Any reform, whether it relates to in or out-of-court proceedings, must be followed up and evaluated. Such work must integrate all the relevant disciplines and actors, avoiding one-sided and unsupported approaches. Coordination—both in terms of knowledge, professional skills, and legal fields—can foster individualized, proactive solutions, more likely to benefit the best interests of the child. As a scholar, there is a risk of reproducing existing arguments and following established patterns, even when aiming to reach beyond them. We would like to encourage further study on how proceedings can be matched to problems in custody proceedings, which—no matter the discipline—approaches the issue itself as both historically created and complex in the sense described in this final chapter, and illustrated throughout this book.