Why Family Courts Should Apply The Equality Principle[EP] to Custody Disputes


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In some custody disputes parents are equally fit, other factors are not decisive, shared custody is ruled out, and the parental conflict is the only threat to children’s well‐being. There are no systematic principles to resolve these disputes. To fill this gap, introduce the Equality Principle[EP]. This principle may improve children’s well‐being, parental behavior, court efficiency, and custody investigations.

Every year, thousands of children worldwide experience divorce and custody, living, or visitation disputes. Some are messy, and children suffer greatly for prolonged periods. Custody disputes occur when parents cannot agree about custody, living, and visitation rights. In some countries, parents sue each other for custody, and courts instruct some other governmental unit to negotiate between parents or to conduct custody evaluations to provide information for the court’s final decisions.

Typically, custody evaluations put children’s needs before parents’. They also involve investigating both parents for ‘fit’-ness assessments which are prone to bias. Instead of investigating details about the parents to settle the dispute,  introduce a new principle to motivate parents to negotiate. This principle is heavily inspired by splitting the difference.baby-caucasian-child-daughter-53590.jpeg

In custody disputes, it is desirable to make parents less motivated to litigate and more focused on cooperating. In psychology, motivation is defined as the initiation, intensity, and persistence of behavior. Goal setting is important to motivation. Specific goals are more motivating than general goals. Parents’ goals are very specific; they want to win.

The outcome of a judge’s ruling is out of the parents’ hands, but they can manipulate their chances of winning by accusing the other parent of domestic violence, child maltreatment, or other misconduct. According to goal‐setting theory (Locke & Latham, 1991), subjective beliefs in people’s chances to succeed are central to motivation. Generally speaking, if people believe that they cannot win, then motivation is reduced. A perceived reduction in difficulty typically leads to an increase in parents fighting for sole custody and, hence, the sharp increase in disputes.

From a goal‐setting standpoint, it is perfectly rational for judges to reduce parents’ perceived chances of winning the dispute. This can be done by (falsely) claiming that both parents would lose and agreeing that the last offer is their best option. The judges’ not‐so‐hidden agenda in such a situation is the realization that the child will probably not benefit from further litigation. Most likely, experienced judges, mediators, and custody evaluators have used or been tempted to use such tactics to make parents agree without court orders.

Goal‐setting theory stipulates that equalizing perceived chances of winning is beneficial for mediation. The EP aims to make subjective beliefs about winning objective by establishing actual equal chances. Parents should be more willing to negotiate in such conditions, but some practical and theoretical conditions must be met before the principle can be used.

First, no parent should be regarded as unfit. The concept of an unfit parent is misleading and unfortunate, as many relevant risk factors for child abuse and maltreatment have little or nothing to do with parents’ attributes. If the process yields no results leading to recommendations, then courts should threaten to solve the dispute by randomization. Should parents fail to either reach agreements reasonably quickly or to decide to solve the case by randomization themselves, then courts should use randomization in their rulings. Before this, written information should be given to both parents to ensure that they understand how the dispute will be solved and they should sign a contract promising they will adhere to the court’s coin‐flip ruling.

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If two highly conflicting parents are individually fit, and the ICBI finds no significant difference between them, then courts should threaten the parents that if they cannot agree, the decision will be made by a coin flip and the loser will get visitation rights only. This principle equalizes any differences in subjective experiences of chances of winning. The EP provides objective information about the actual chances of winning. Thus, cooperative pairings should be more frequent. Also, because the threat of losing is concrete and imminent, the threat of randomization is beneficial for subsequent negotiations.

“Courts and the rest of society do not want to take part in constant bickering over your children. We do not want to waste governmental resources on your disagreements, and as you are both deemed as fit, you should be able to successfully negotiate. If you are unable to agree, coin flips will be used because the conflict is harming your children, and stopping the conflict has higher priority than parents’ wishes.” Hopefully, the EP can be used as a tool to send a strong message to motivate parents to solve their own disputes without governmental involvement.

The most important improvement for children is the reduced time spent suffering uncertainty. While litigations rage on, children are uncertain of their living conditions or parental connections. Previous research has identified several developmental issues associated with uncertainty including general anxiety, depression, social anxiety, and obsessive-compulsive behaviors.

The argument for the child’s perspective is that if there are no significant differences between the parents, and courts have no other relevant information to resolve the case, letting children decide is a better strategy than using the EP. The UN Convention on the Rights of the Child (UN General Assembly, 1989) openly urges governments to listen to children about almost every facet of their lives and custody is clearly a life‐changing matter. No matter how appealing this strategy is, its usefulness is limited, and it should not be applied in the vast majority of custody disputes where the EP is suggested.

First, in many child custody cases, children are unable to provide meaningful information about their own preferences. Often, they are too young or immature to make informed decisions. In these cases, asking the children is a nonviable strategy and the EP is superior. Furthermore, asking the children may also lead to lengthy discussions about maturity and child development that may not be beneficial for solving custody disputes. Second, asking children has several methodological problems. Children are very susceptible to leading questions, and the procedure of asking may have more influence on their answers than their actual preferences. Third, asking children may be highly unethical. They may not have any preferences, and should they have any preferences they could be very temporary. If children have no preferences, pressuring them to decide between parents is more like existential torture than a useful custody dispute resolution strategy. In addition, the whims of children are fleeting and so are their preferences between parents.

Children with preferences may not have a long‐term perspective and may not even understand the consequences of their preferences. Thus, asking children for their parental preferences is very delicate. If asked too loosely, children may provide a preference without realizing that they have, or they might not consider the option of preferring both parents equally. It makes a great difference to offer the option of answering no preference, and children are likely not sophisticated enough to realize that option is possible.

Finally, and most importantly, there are practical problems. Children often prefer lenient and carefree parents. Parents who have high expectations for good behavior and who teach discipline, character, and other attributes and skills necessary for adult life are doing something important for their children but are likely less popular with them; parents who forbid smoking, alcohol, and drugs (often in line with the present laws) or spending time with criminal or drug‐abusing friends are probably less popular among teens.

Child preferences are rarely in line with their own best interests. Furthermore, an overly strong child perspective increases the risk of litigating parents competing in popularity or leniency contests for their children’s favor. During litigation, teens could manipulate both parents through their preferences to disempower them as parents. In seeking a general principle to solve custody disputes, parental popularity contests are not in the children’s best interests. Applying a child perspective should not mean giving children power over their own parents.

Giving litigating parents one last chance to agree amicably before using randomization should also provide better motivation for negotiation. Although the EP is far from a perfect solution to all custody dispute issues, it has several advantages over the present system: children suffer less time in uncertainty, parents behave more rationally and more generously, courts save resources, and custody evaluations are improved because minor differences between parents no longer matter. Judges may also feel less emotional strain from making extremely difficult decisions based on insufficient information. The EP should therefore be considered when evaluations provide no decisive information from the custody evaluation, but conflicts between parents rule out shared custody and living.

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