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Wednesday, July 9, 2014

Custody Law's Moving Target

In addition to directing Penn State Law's Family Law Clinic, I also teach our Family Law lecture course.  As I graded the 53 essay exams from that course this May, I was struck by the responses to my exam question regarding custody.  When asked to share legal and policy changes that would improve the custody law system's impact on children of divorce, an overwhelming majority of students opined that courts should require children of divorce to meet with a mental health counselor. 

Most noteworthy about this groundswell of opinion, expressed in near lockstep during a traditional, don't-talk-to-or-even-look-at-each-other classroom exam, was that I did not teach them this legal remedy--at least not directly. 

The casebook I use, Weisberg and Appleton's Modern Family Law, certainly covers the use of "special participants" in custody proceedings.  Along with guardians ad litem, custody evaluators, and mediators, mental health professionals are referenced in several cases and notes in the book.  Nowhere, however, does the book suggest or ask readers to consider whether parents should be ordered to have their children seek therapy.  Neither do I in my teaching--although frankly I think it is a sound and thoughtful policy idea, regardless of whether it would, could or should be legally mandated.

These students organically generated the mass "discussion" that played out in my brain as I read response after response saying virtually the same thing--children of divorce need to process the trauma that divorce brings to their lives.  The latter concept--the trauma of divorce--I did teach directly.  The casebook covers it in some detail, including empirical data that raises more questions than it answers.  And my delivery in class stressed that.  The experts cannot agree.  The courts cannot agree.  Comparing systems state by state, county by county, and sometimes even judge by judge, yields a dizzying array of approaches, policies, mandates and procedures just on the issue of utilizing experts in custody cases, not to mention the achingly unhelpful "best interets" standard.

Thus I was struck again a few weeks ago as I delved into the Association of Family and Conciliation Court's April 2014 edition of The Family Court Review.  It is a special issue dedicated to "Closing the Gap" on "Research, Policy, Practice, and Shared Parenting."   Yet as articulated by Dr. Sanford Braver, professor emeritus of psychology at Arizona State whose research has focused for decades on divorcing families, the AFCC's special issue "fails to say very much" and leaves the reader with the message that "the issue of shared parenting is a really good question, but we cannot, at this point at least, agree on how to advise you."

Braver is right on that point.  I am not sure whether I agree with his bolder assertion which follows, that shared parenting should be the jumping off point for custody courts.  What I am sure of is that come August, I will teach my clinic students about custody law by sharing these twin concepts: custody law is mercurial at best, and discussing the potential involvement of mental health professionals with client's lives, regardless of whether it is part of a court-based process, is sound legal advice for a family lawyer swimming through these murky waters.

 

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