In the Best Interests of Children: A Proposal to Transform the Adversarial System

Abstract

In the traditional family law and child protection litigation where the court is asked to make determinations based on the best interests of aminor, the adversarial, rights-based model often fails to serve the interests of children and families and may be more harmful than beneficial to children relative to other possible methods of dispute resolution. This article examines the shortcomings of such an adversarial, rights-based model; briefly highlights the literature on dispute resolution systems design; and then proposes a new approach to better serve the interests of children in family law and child protection cases.As many others have previously discussed, the adversary system is often unhealthy for children.' In the traditional family law litigation process and the child protection system where the court is asked to make determinations based on the best interests of a minor, the adversarial, rights-based model typically fails to serve the interests of children and families and may be more harmful than beneficial to children relative to other possible methods of dispute resolution. SHORTCOMINGS OF THE ADVERSARY SYSTEMOur legal system generally relies on the notion that adversaries in a legal dispute will draw forth all information relevant to the contest in the process of putting forward their best positions, thereby allowing the decision maker to determine the "truth" and to make the best decision. Although the goal of an adversarial, rights-based model is to best serve the interests of children, the current system has a number of shortcomings that undermine the best intentions of the professionals involved. ''L.Qgulizution" of human problems. The best interests of children in divorce and child protection cases have become defined as primarily a legal problem; in reality, they are much more complex psychological, social, and legal problems that typically become intertwined into other issues such as child support. Family relationships have become "legalized" in such a way that the system loses sight of the human problems in context and focuses only on addressing answers to the legal issues. The failure to better examine family problems contextually results in little recognition for the ecological perspective of family dynamics. Greater understanding of cultural mores, for example, has no place in a system bound by the act of fitting evidence into the fixed definitions of a statute. The law is not the appropriate forum for assisting dysfunctional families to function better. Resolution of the legal case often does little to improve or resolve the underlying family dynamics.

Risk Management and Aspirational Ethics for Parenting Coordinators

“…This expensive "merry-go-round" clogs the system, but its greatest impact is on children who are caught in the middle of a grueling siege that can often last for decades. Firestone and Weinstein (2004) observed that the legal system by its very adversarial nature is ill suited to deal with most post-divorce problems, in which "family relationships have become legalized in such a way that the system loses sight of the human problems in context and focuses only on addressing answers to legal questions" (p. 203).…”

“…Firestone and Weinstein (2004) succinctly observed that the current domestic law system, with its emphasis on adversarial posturing and legal rights of the parents, is not the appropriate forum to resolve the problems of divorcing or divorced families.…”

Arguments for an Equal Parental Responsibility Presumption in Contested Child Custody

“…Child development and family dynamics are a delicate matter, and the discretionary power of judges an area in which they are neither professionally trained, nor competent to assess third party evaluations or professional literature on the matter, is a recipe for disaster. In making decisions regarding child custody and access, judges do not consult relevant research on child outcomes (Kelly and Lamb, 2000), and are highly susceptible to error bias (Firestone and Weinstein, 2004;McMurray and Blackmore, 1992): judges are not infallible and routinely make mistakes, awarding custody to the more litigious parent, with children running the risk of being placed in the exclusive care of an abusive parent. Melton (1989) presents a startling account of how little social science knowledge trickles down into legal policies that are intended to benefit children in the child custody realm.…”

A Model Equal Parental Responsibility Presumption in Contested Child Custody

“…Cases are largely decided by the way evidence is presented in court, and thus the BIOC is subject to judicial error (Firestone and Weinstein, 2004). The BIOC standard also makes the court largely dependent on professional custody evaluators.…”