Challenges When Family Conflicts Meet the Law—A Proactive Approach

Abstract

The final contributing chapter assumes that the effectiveness of addressing a social problem depends, in part, on the quality and appropriateness of the procedures used to address that problem. For the author, attributes of domestic relations problems—especially child custody issues—do not fit well with the capabilities of traditional legal procedures. However, this lack of fit between problem and procedure can be overcome and procedures improved. Using a proactive approach, the author identifies a need of 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, for example, the welfare system and psychology.

9.1 Introduction

Child custody arrangements caused by parental separation present fearsomely difficult problems for parents, courts, and the children themselves. They regularly include: establishing ongoing residence patterns, visitation and contact rights; child support and other payments; decision-making rights about education and other significant developmental issues. The challenges of custodial and relational management often overwhelm social institutions and methods, precisely when the parents’ coping skills and resilience are at their weakest. Consequently, children’s health, wellbeing, and life prospects can be jeopardized.¹

Interpersonal skills of the parents, while vital, are not always equal to the task of negotiating either immediate custodial arrangements, or the ongoing environments of their children. Initial structural questions about children’s welfare and development come at a time of almost unparalleled stress and emotional turbulence for the parents—the undoing of a personal relationship they typically had expected to be lifelong and mutual in its commitments. Anger, fear, disappointment, and feelings of betrayal understandably challenge the wisdom of immediate decisions. All relationships are in constant flux; over time they shift between the parents, and among the children and their parents, grandparents, siblings, stepparents, stepsiblings, friends, and teachers—all in a variety of contexts, histories, needs, and uncertain futures that compound the complexity of the issues.

As described by the editors in their Introduction to this volume,² child custody arrangements are deeply intimate, strongly emotional, and intertwined in complex, dynamic, and often unpredictable relationships. The issues are potentially explosive as well as intensely important to both society and particular individuals. Little wonder, then, that for decades we have looked to the legal system to configure and oversee child custody following parental separations.

Yet relying so heavily on legal institutions has proven problematic. The issues require flexibility even while ensuring stability; the procedures must offer access and immediacy to all affected parties but without overly intruding in daily life. The professionals rendering custody decisions must respect the intimacy of parent/child relationships yet also acknowledge their destructive potentials. Such conversations do not easily proceed in traditional courts, even when their formalities are supplemented by social workers and evaluators. Significant structural reforms are needed. Somehow, we must prudently, but more successfully invoke the power of the state to protect children and society in the risky and sometimes volatile circumstances of parental separation.

What can be done? How can we structure conversations and empathic understanding within a legal framework that will best facilitate the wellbeing of children and their parents? What combination of constraints and freedom, rationality and emotion, supervision and trust can offer the best chances for successful transition of parents into their new lives, and their children into adulthood?

The demands of child custody issues are so profound that we in the law may be required to transcend our normal understanding of a ‘legal procedure’. Custody arrangements might require lawyers to acknowledge and incorporate different ways of thinking and speaking about rights, relationships, and social environments. We must adopt methods and mentalities that challenge some of the underlying assumptions about our historic systems of justice.

In the sections below, I use problem-solving and prevention principles derived from Preventive and Proactive Law (PPL) to explore these issues.³ Part I considers the mismatch between the structural demands made by custody problems and the procedural tools for resolutions traditionally available through the courts. Part II reflects on alternatives for examining and discussing custody issues and goals. Part III posits ideas for new institutional legal tools and ways of speaking about child custody. Part IV concludes that traditional legal methods should be supplemented by specific practices seeking to strengthen parental cooperation, child development education, and community involvement, and we should consciously broaden the moral and cultural language that courts use to reflect upon children’s wellbeing and social integration.

9.2 Matching Problems and Procedures

Social problem-solving—of which the law offers a particularly significant and distinctive example—suffers from several ongoing breakdowns of imagination⁴:

• First, failing to realize that not all problems are alike in the demands they make on procedures for their resolution.

• Second, failing to fully appreciate that every human procedure is limited in its capabilities.

• Finally, failing to see when certain problems have been stuffed into unsuitable procedures that are at best clumsy, but at worst, counterproductive and discourage efforts towards procedural innovation.

In brief, this is what has happened with the problem of child custody arrangements and the procedures of the law: structurally, courtrooms are not well-suited to take on a problem with the attributes of child custody. And yet the problem continues to be decided and managed inside legal institutions. In part, this is legitimate caution—an awareness that violence or moral extortion could follow if we do not employ state power to oversee child custody. But the persistence of child custody proceedings in courtrooms might also have less thoughtful explanations: perhaps we lack alternative institutions, or we have used legal procedures for so long, that we now intuitively frame custody issues according to the structural needs of the legal procedures rather than the relational needs of the children and their parents.

However expedient it might be to send child custody matters to the law, they just do not fit well. As a result, the law has resorted to using an improvised standard to substitute for rules—the ‘best interests of the child’—a way of speaking that challenges clear criteria, predictability, or review.⁵ This standard arguably glosses over the social complexity of the issues; further, it is articulated in a non-rule format largely devoid of provable elements and almost immune to falsification—both hallmarks of traditional rule-of-law ideals.

And yet I feel the standard itself is appropriately protective and child-centred. As a guide for legal outcomes, it should be retained. The best-interests standard seems a historically sincere effort by a host of legal professionals to responsibly address a set of problems for which the legal system lacks adequate tools—or even well-articulated goals. The standard is not to blame. It provides a vital moral foundation by focusing attention first and foremost where it should be: on the wellbeing of the child rather than the demands or convenience of either parent. Further, it retains the possibility of state-imposed protections against egregious or exploitive behaviours.

Yet as applied inside traditional legal structures, the best-interests standard oversimplifies the problems and emotions surrounding child custody arrangements.⁶ The operations of the legal system thus may be stifling our imaginations and incentives to invent something better. We need a broader repertoire of methods to refine and apply the standard, and stronger, clearer objectives for assessing the outcomes of legal decision-making. In the sections below, I identify better tools as well as more refined and transparent goals.

9.3 New Tools and Goals for Addressing Child Custody Issues

The discussion below seeks to broaden the range of structures and problem-solving tools by which the law approaches child custody arrangements. While acknowledging a continuing background need for state power to intervene when necessary to prevent exploitation or cruelty, it also pursues mechanisms that appeal more broadly to relationships, community values, and independent professional support. These measures would no doubt impose significant financial costs and challenges of staffing, organization, and coordination. I urge, however, that such expenses be placed side by side with the enormous long-term financial, social, and psychological costs of neglecting the developmental needs of children and the wellbeing of their parents.

My suggestions below focus on structures and practices that:

• rely less exclusively on state power, bringing alternative problem-solving mechanisms, such as the willing accommodation of the parties to adjust to changes in their relationships.

• articulate a moral or cultural vocabulary in addition to a ‘rights’ and ‘evidence’ legal way of speaking.

• provide modelling or support from community members engaged in day-to-day contact with the parties.

In dealing with the intimate, but also profoundly social problems of child custody, each of these considerations should guide procedural design. They are cumulative rather than exclusive or antagonistic. Taken together, they are humbler about finding an infallible truth.⁷ The challenge is to find viable institutions that can realistically and competently harness the diversity of these methods.

9.3.1 State Power

State power, rationally and fairly applied, is the traditional domain of legal problem-solving. Inside courtrooms, power speaks through judging: measuring human behaviour against authoritative norms and pronouncing blame or required action, making little use of emotion or relationships.⁸ Notwithstanding its narrow focus, we should never dispense with legal power and judgement, for at least three reasons:

• First, if the parental relationship is formalized by a marriage now requiring divorce, these are state-recognized statuses. The state must have formal mechanisms for conferring and dissolving marital status.

• Second, cruel and exploitative people will sadly always be among us. The courts must provide enforceable public means to prevent physical and mental abuses of children and family members.⁹

• Third, courts and the law provide at least an indirect moral voice. They articulate basic social values through their institutions and practices—which is why this book examining child custody is so important.

9.3.2 Party Accommodation

As I have suggested, formal legal power as traditionally exercised through the courts is necessary, yet insufficient when considering the problems of child custody and domestic relations. But power can readily be supplemented by consensual, mutual accommodation¹⁰—the primary tool of mediation, cooperative talks, and the willing agreement of the parties.

Still, party ‘agreement’ is not completely reliable.¹¹ Often the accommodation of parents comes about through reciprocity, in which the parties come to a fair bargain about the duties and expectations of their relationship and towards their children. At other times, however, the ‘accommodation’ is basically unjust, the result of exhaustion or an underlying capitulation to superior economic power, fear of physical threat, or moral blackmail. It is not truly ‘willing’, but instead reflects power imbalance or ulterior motives.¹²

9.3.3 Beyond Power and Accommodation: Unconventional Tools and Goals

The limitations of power and accommodation in addressing child custody issues suggest that a broader institutional system should be constructed, moving beyond merely establishing courtroom and private parental agreements. In designing a broader system, newly developed legal structures could focus on unconventional tools and systemic goals.

Alternative tools might be:

• Cognitive depth and restructuring.

• Moral and psychological sentiments such as, forgiveness, apology, respect, empathy, and grace.

• Community peer pressure.

• Support systems emphasizing friendships and finances.

Alternative systemic goals could include:

• Emphasizing and strengthening the long-term relationships of parents to one another, and of each with their children.

• Taking specific measures to avoid parental conflict that clearly jeopardizes child welfare and adjustment.

• Providing ‘safety triggers’ that signal signs of child abuse, neglect, or poor parenting and can cycle back to stronger state power mechanisms.

• Finding the proper combination of overall stability with the obvious need for flexibility and adaptation to changes in the family environment and children’s development.

In the concluding section below, I propose four ideas that attempt to institutionalize a combination of traditional legal tools of power and party accommodation, with the alternative tools and goals outlined above: (A) a beginning relational contract; (B) easily accessed, web-viewable videos or other educational materials about parenting and post-separation relationships¹³; (C) periodic mandatory reviews by the court of problems and progress; and (D) ‘court friends’ for every child—community members who would operate like a big sister/big brother or aunt/uncle, but who could also provide early warning in the event of trouble or need.

9.4 Ideas for New Institutions

9.4.1 Create a Relational Contract as a Condition for Obtaining a Formal Separation

The first suggestion is that in every formal decision involving child custody, the court decree is conditioned on the parents committing to a relational contract that sets out a framework for cooperative behaviours towards maintaining a stable environment and basic support for their children. They can be used in many settings and are particularly appropriate for longer-term, unpredictable contexts—and thus are especially useful for the volatile course of child custody arrangements as they unfold through the years.

In a relational contract, the parties do not attempt to establish a firm ‘legal future’ with mutual promises. Instead, the parties acknowledge the unknowability of the future, but also commit to dialogue and fairness in dealing with it. Presenting the separating parents with a formal agreement that they promise to uphold helps identify and underscore their commitment towards specific goals for themselves and their children and provides a permanent touchstone by which they and the courts can measure their progress or backsliding.

Relational contracts to structure and adjust child custody arrangements employ cognitive awareness and restructuring, supplemented by emotional and moral appeal. They can clearly set out the relational goals for both parents and children and specify behaviours that will be expected or prohibited.

Relational contracts have been used successfully in relationship termination settings through formal ‘Collaborative Lawyering’ arrangements,¹⁴ but such contracts can be used more broadly and informally. They are particularly appropriate for longer-term, unpredictable contexts like child custody. Relational contracts set out a starting framework of arrangements and responsibilities, and then seek ongoing communication, flexibility, and fairness as ways to address risks of uncertainty and loss of trust.¹⁵

The International Association of Contract and Commercial Managers (IACCM, now the World Contract and Commerce Association or WorldCC) produced a White Paper¹⁶ identifying the following five design steps for a relational contract. The authors write in the context of commercial relationships, but the principles are the same when the parties are parents creating child custody arrangements:

• Focus on the relationship, not the deal.

• Establish a partnership instead of an arm’s-length relationship.

• Embed social norms in the relationship.

• Avoid and mitigate risks by alignment of interests.

• Create a fair and flexible framework.

Here are some sample ‘preamble’ clauses that I suggest might be inserted at the beginning of a relational contract. They illustrate the kind of cooperative commitment to be made by the parties. One or more of these pledges should be included, specifically signed by the parties, and emphasized by any mediator or court official when faced with any subsequent disagreement concerning custody arrangements:

• 1. We agree to work towards arrangements that share risks in a balanced way, striving for maximal realization of both parties’ interests, and those of the children.

• 2. We agree to communicate in regularly scheduled meetings about the progress and quality of our arrangements and performances as parents.

• 3. We agree, when needed, to cooperate and perhaps even provide affirmative assistance towards another party’s performance of its contractual duties.

• 4. We agree to work towards understanding and accommodating the needs of one another in response to changes, and to be open to modifying terms where conditions suggest the need for adjustment.

• 5. We agree that in the event of a dispute, to negotiate in good faith and to seek mediation and other alternative dispute resolution methods where initial efforts at negotiation fail.

• 6. We agree that, in the event of litigation, we should not limit the interpretation of the agreement to its explicit language. Instead, all interpretations of the commitments and understandings of the parties should be augmented by the collaborative spirit in which the agreement was entered.¹⁷

9.4.2 Parenting and Relationship Educational Videos

The idea behind this second suggestion is that when parties understand more deeply the goals of relationships and parenting, and have better skills, they will be able to prevent problems from arising—or de-escalate tensions if they do arise. These videos should be web-based so they are immediately accessible at all times. Each should address a specific topic or context that frequently causes difficulties throughout child custody.¹⁸ They would employ cognition and skill-building, combined with a sense of empathy and moral responsibility, to promote better problem-solving by the separating parents.

In producing these videos, the courts could engage expert family and relationship counsellors, plus child developmental psychologists, to create content that alerts separating parents to the types of stress they and their children are likely to encounter, and then communicate skilled, thoughtful ways of dealing with the difficulties. Anticipating the risks to parents and children, and then offering early intervention possibilities, can reduce the eruption of more troublesome problems.

The web videos could be used across the years of changing circumstances, with specific topics such as:

• New partnering or remarriage.

• The interactions of blended families.

• Geographic relocation of one parent.

• Visitation schedules and suggestions for successful interactions following prolonged absence.

• Financing special needs or occasions for the children.

• The possibility of a parent experiencing depression or addiction.

Generally, the web videos could address vital goals, like the need to avoid poisoning a child’s relationship or feelings towards the other parent; warning against the dangers of a parent’s external financial or emotional stress being brought into co-parenting arrangements, with the child becoming a pawn; and the possibility that the child will feel personal responsibility or guilt for the parental breakup.

9.4.3 Mandatory Periodic Reviews by the Court

For the first couple of years following the creation of a child custody arrangement, the separating parents should appear before the court every six months. This promotes accountability and acts as a reminder of what the community (in the form of the judge) expects from them regarding their children. The idea of a periodic reappearance in court is often adopted in problem-solving courts, and to good effect.¹⁹ With time, and if the parties seem capable of managing their relationships properly, these sessions can be reduced to once every year or even once every two years.

When directing these periodic reappearances, the judge should be encouraged to speak in ‘non-legal’ as well as ‘legal’ ways, as appropriate, to effectively impress various issues upon the parents. Moral or psychological sentiments like forgiveness, apology, and grace activate different parts of our psyche—parts that acknowledge our inherent connections with others and the need for transcendence of the self. At one time, such moral reflections were prompted by spiritual leaders and readings. In a more secular world, the influence of religious role-players has been reduced, but the thoughts or sentiments about human connection remain important and powerful. These ideas are not the monopoly of religious figures. They can be used to great effect by any respected persons within a society. Judges are therefore excellent candidates to fill the role of moral or normative counsellors, as are the mediators who might help with creation of the initial relational contract or re-negotiations as circumstances change.

9.4.4 Use of a ‘Court Friend’

The need for different sorts of speaking, or relating as people, is also a part of the fourth and final idea for new child custody problem-solving: the creation of formal ‘court friends’: persons designated by a judge to become a small, but regular, part of every child’s life following a parental separation. Securing even an institutionalized friendship could be especially important for children of separating parents, since it is plausible that these children will often find themselves in new schools and having to make new friends just at the time they might feel most vulnerable. The idea is that children, like their parents, need modelling of ideas about cooperation, respect, empathy, and forgiveness.

The court friends could be community volunteers or trained social workers. They could be of any age; indeed, senior citizens could be well-suited to the role, especially if paired with a second, much younger court friend.

• The purpose of the court friend is simply to be a contact for the child—not for the parents—with one or more adults from the community. The intention would be that this person would act in the same capacity as a friend, mentor, aunt/uncle, or godparent—someone with the best interests of the child at heart and a trusted source of conversation and advice.

• The court friend could also provide early warning for the court if abuse or neglect is suspected. The court friends would make periodic contact with the children assigned to them by the court. This could be by a monthly, in-person visitation or, if the children are old enough, a video call. There need be no agenda or script—the court friends would simply talk to the children.

• Conceivably the court friends could convene group online sessions to allow the children to talk within a group of other children in similar circumstances. The same could be done in person once every couple of months; the court friend could take a small group of children on some sort of outing, thus facilitating formation of children’s friendship networks.

9.5 Conclusions

The demands of child custody problems outstrip the capabilities of traditional legal procedures. Rather than artificially squeezing the problem into insufficient frameworks, the legal system should supplement its traditional problem-solving methods with unconventional tools and goals, seeking stronger personal relationships and community involvement: willing mutual accommodation of the parties, formalized in a relational contract; improved parenting and relationships with problem anticipation through educational web-based videos; expansion of the moral or cultural vocabulary that court personnel use to speak with parents in meetings at regular intervals; and an increased presence and modelling of community members in the lives of the children. By combining these innovations, it could help the legal system gain the procedural sophistication it needs to meet and overcome the challenges of child custody arrangements.