Conference of Leading Child Custody Practitioners Recommends Major Transformation of Courts, New Rules for Lawyers, Evaluators

The leadership of the American Bar Association Family Law Section, the Association of Family and Conciliation Courts and other groups convened a gathering of approximately 45 lawyers, judges, child psychologists and court workers for a conference on "High-Conflict Custody Cases: Improving the Legal System for Children" at the Johnson Wax Foundation's Wingspread Conference Center near Racine, Wisconsin this September 8-10.

[FOOTNOTE 1: "Crouch", you may ask, "if these people are such great authorities in our field, how come you were there and I wasn't?" I was there only because of my office as co-chair of the ABA's custody committee. Others included Wisconsin Chief Justice Shirley Abrahamson, Chicago Presiding Judge Timothy Evans and other judges; Wilson McTavish, The Children's Lawyer of Ontario (head GAL for the province); ABA Family Law Section Chair Linda Elrod and several of her predecessors; many other leading divorce lawyers; AFCC director Ann Milne; Oregon family court reform task force chair Bill Howe; Janet Johnston, Ph.D. and several other psychologists and psychiatrists; California Judicial Council custody czarina Isolina Ricci; and several eminent law professors who actually practice family law as well as teaching it and editing family law journals.]

A different kind of court system

Several participants recommended that custody should not be the subject of an adversarial justice system, but should rather be dealt with by processes that in some ways are more like a bankruptcy and in others more like an "inquisitorial" judge-driven legal system. Not because adversariality is bad, but because an adversary system of justice relies on lawyers representing the parties throughout the proceeding -- which most divorce and custody litigants can no longer afford. (Studies in Phoenix and Miami have recently shown that 60% of people are pro se when they file for divorce and only 20% still have a lawyer by the end of the process.) An inquisitorial system requires the judge and other court personnel to do more lawyering, questioning and investigating. Becoming more inquisitorial and bankruptcy-like will actually bring family law closer to its roots in the chancery or equity side of the court system. Several participants also drew comparisons with the "pure no-fault" divorce systems (with reconciliation counseling components) that several states enacted a generation ago. They said custody, like divorce grounds, needed to be taken out of the fault litigation system.

[FOOTNOTE 2: The conference's recommendations will shortly be released in an official report by the reporters for the conference. This article summarizes what the recommendations are expected to be, along with some background that will not end up in the report. (Including most of the paragraph above, which is drawn mostly from several participants' comments in breakout sessions and informal discussions. It did not end up in the report, which calls more generally for "new models", but I believe it does accurately set out the big picture which the details of the report aim at.]

What is a "High-Conflict" Case?

Lawyers and judges pointed out that while some cases are clearly destined to be nightmares and involve very deviant personalities, there are a lot of other cases which may unpredictably turn into chronic high-conflict cases at any time. Sometimes the fault lies with lawyers, sometimes with others in the system, often with the clients themselves, and sometimes it's a result of how the system handles honest disagreements between fairly reasonable people.

Some participants were more concerned with a small fraction of truly awful cases that take up a disproportionate share of court resources, and cited studies showing that about half of these involve serious abuse charges, violence and mental illness. Others said that a large share of our cases (one court worker said 40%), while not that extreme, are pretty high-conflict, and also are totally unaffordable for most clients. They make them desperate and often simply turn them into worse people. In any case, most of the group's recommendations are preventative ones intended to apply to all cases.

Triage

Too often courts treat one program as a silver bullet that is good for what ails everybody. We need to differentiate between cases as quickly as possible, and offer a wide range of services but be intelligent about which ones are applied in which case. Families that are not high-conflict may need some assistance from court or mental health professionals in managing their differences, but that intervention should be as unintrusive as possible, focused on the specific issues in dispute, and of limited duration.

Cases that are high-conflict, on the other hand, should not have to go through all the programs for other cases, and fail them, before being allowed to move up to a higher level of court intervention. Indeed, in the large proportion of high-conflict cases that involve abuse charges, conferees saw no reason why they should not have the same kinds of state intervention that criminal abuse cases or dependency and CHINS cases have. Several complained that for the same kinds of cases, we have two systems: high-dollar, multi-expert custody fights for the rich, and CPS and termination for the poor.

Adjudicating and Managing the High-Conflict Case

Once a case does turn into a high-conflict case, participants recommended that it be treated very differently from other cases. Many of the diversion, dispute resolution and education programs that help most people are not appropriate for high-conflict cases and can even do harm and be misused by aggressive litigants. What high-conflict cases need instead is quick and aggressive adjudication of the issues.

Education. Education programs for the people in these cases often need to be specialized and teach different behaviors from those recommended to most litigants. For example, while most programs for divorcing parents try to teach "cooperative parenting," some people who cannot get along with each other need to learn "parallel parenting," which maintains each parent's relationship with the children while minimizing contact between the parents.

Dare to Punish. Participants also agreed that judges need to be more willing to punish gross misbehavior by lawyers and clients. While most cases may benefit from the Dr. Feelgood treatment, judges cannot treat all cases as if they were essentially alike. Nor can they always assume that both parties are equally at fault, and thus fall back on measures that punish both or neither of them.

Ongoing Management. Adjudication often must be followed by ongoing management of chronic conflict. Participants pointed to programs in several states that appoint a lawyer or a psychologist as a case manager or arbitrator to deal with recurring disputes efficiently.

Prevention

The group recommended several measures to prevent cases from becoming high-conflict:

"Parenting Plans" and elimination of "custody and visitation" terminology.

Participants all favored abandoning the terms "custody" and "visitation" and requiring "parenting plans" that do not name one parent as the winner and one as the loser, but do include a schedule of the child's time with each parent.

Participants felt that all reforms aiming to get clients, psychologists and lawyers to act and speak in a less adversarial, polarizing manner ultimately would be ineffective unless the ultimate goal of the whole system was truly changed from picking a winner and a loser to managing the family's reorganization and planning the child's upbringing. For example, the custody evaluator who is charged with helping a family come up with a parenting plan to manage its ongoing responsibilities is going to act very differently from one who is charged with finding the good guy who should be rewarded with custody and the villain who should be stripped of it. Psychologists cited many examples of actual custody evaluation processes to show that this was just not a hypothetical observation.

Initially, however, not everyone was hopeful about this proposal. Participants from states that have not made this change (and from Texas, which has incomprehensible terms that mean custody and visitation) questioned whether changing the words would actually affect the way ordinary people think and talk. After all, custody and visitation are common terms in the American language even among those who have never been to a lawyer, as everyone is familiar with divorce and unwed parenting from friends, relatives and T.V. But representatives from England and Oregon, which made these changes circa 1990 and 1997, respectively, said it really has changed how people think about the legal process and their own cases. Parenting plans are a change in the structure of the system, not just new P.C. buzzwords.

Eliminating the word "award" "altered the whole approach", Oregon family court official Hugh McIsaac reported. "Plan emphasizes responsibilities, award emphasizes rights." Plan is for the future, award is for the past. "Plan models the skills parents must use in the future, award models the opposite kind of behavior." [FOOTNOTE 3: McIsaac was unable to come and sent an article by him from which this is paraphrased: "Programs for High-Conflict Families", 35 Willamette L. Rev. 567, at 582 (1999).]

One evaluator, court-appointed

In high-conflict cases and regular ones alike, there should generally be only one custody evaluator, and he or she should be court-appointed. Not because it traumatizes the child to talk to additional custody evaluators, but because of the ruinous expense of having multiple evaluators, when the money could be better spent on treatment for whatever problems the children allegedly have. Specific standards were prescribed for when and how a court would allow an evaluator's methods to be questioned and appoint a second evaluator. In any case, there could still be expert testimony challenging the evaluator's methods and diagnoses, and of course the custody decision would ultimately be up to the parties or the judge.

Some participants complained about professional expert witnesses who run their own cottage industries testifying for one gender or another. They said it would be less polarizing, and more useful for judges, if court-appointed custody evaluators were part of some larger structure providing some professional review and supervision of their work.

Experts must work as a team

In any case where there are nonetheless two or more custody evaluators involved, they would be required to meet and work as a team, and compare their professional opinions and information to come up with a common statement describing what they agreed and disagreed on. They would have to procure whatever waiver of patient confidentiality they need in order to do this. Also, therapists treating any members of the family would have to confer on questions of parenting and the child's welfare.

Evaluators and therapists were also criticized for adding to family polarization by using legal terms and very stigmatizing diagnostic terms too casually, sometimes concerning people they have never met. It was observed that getting your therapist to diagnose your spouse with a personality disorder or worse, in order to justify ending the marriage or fighting for custody, often sows the seeds of very bitter custody fights.

Clearer roles, stricter rules needed

It was widely remarked that litigants have great distrust of everybody in the system, and have many complaints caused by their funny ideas about what lawyers, judges, GALs etc. can or should do for them. Partly this is because they never get educated about what the roles and duties of all the different people involved in a custody case are; partly of course because they don't listen; and also because many professionals involved in the system have been too loose in defining their roles and responsibilities. This goes for everyone from judges to mediators to CASA investigators and GALs. Recommendations include basic education on what happens in custody litigation, better adherence to existing ethics codes for the legal and mental health professions; and new specialized ethics and civility codes for family lawyers and GALs.

Some new ethics rules and mandates:

"A lawyer shall realistically evaluate the client's case and dispel false expectations."

"Lawyers shall zealously exercise their counseling function."

"Lawyers shall develop protocols for working with unrepresented opposing parties."

"Legal and mental health professionals shall make each other, clients and judges aware of the ethical standards governing and limiting their involvement."

"The mental health community must clearly distinguish the roles of evaluator, treating therapist, mediator, arbitrator etc."

Making the law affordable

Suggestions of more legal aid, pro bono or court-appointed representation were rejected because under the current adversarial system, litigants' needs far exceed what anyone can afford to provide, regardless of whether the burden is placed on taxpayers, lawyers, or the litigants themselves.

"Unbundled legal services" let lawyers help or represent litigants for particular tasks, such as drafting, coaching or court appearances, without being held responsible for the outcome of the entire case or being required to represent the client for the duration. Most participants favored allowing and institutionalizing this as the only affordable large-scale way to help the currently pro se majority, but some had grave reservations because of the way such services are currently being delivered. (Many unregulated paralegal-run shops give pro ses forms and advice that may be inappropriate for their cases or even for their state.)

"Collaborative lawyering" was also widely recommended for the containment of both costs and conflict. It involves an agreement between the parties and their lawyers not to litigate. If an agreement cannot be reached and someone wants to go to court, both parties have to get new lawyers. There are also "collaborative" teams including custody evaluators as well as lawyers.

SIDEBAR:

Yes, Virginia, There Is a Professional Consensus

I was quite surprised to learn that all the participants at the Wingspread Conference on improving the legal system for children believed strongly in several measures which have never gotten very far here in Virginia, such as replacing the terms "custody and visitation" with "parenting plans" that do not name one parent as the winner and one as the loser. Other ideas that many conference participants endorsed and none criticized were standardized visitation guidelines, family courts, and "friendly-parent" factors in custody determinations. Everyone I talked to said they believed children needed enough time with both parents for them to function as parents, not just weekend playmates.

At the closing session of the conference, during a discussion of how everyone was going to get these recommendations enacted, I spoke up and told the others that I was very surprised by this consensus, and that in my own state, all this stuff about not using the words custody or visitation, or having any kind of parenting plans, presumptions or visitation guidelines, was very unpopular with legislators and bar leaders, and was characterized as anti-woman and anti-child because it might make mothers get less custody or support or something. I told them that if they tried to advocate this stuff in Virginia they'd be dismissed as a bunch of right-wing fathers' groupies. I mentioned that some also argued that many fathers want custody just for financial reasons or because they are batterers who want to keep abusing the kids or because they want to stay involved in the mother's life. And that there is an influential segment of public opinion that holds the old-fashioned view that children from broken homes are better off with a new nuclear stepfamily, which should not be interfered with by the rejected old remnants of their broken-down original family.

They didn't take this lying down. Several of them said, basically, "You tell those people to cut the crap. There's no empirical evidence for any of that stuff."

-- John Crouch