zy

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Amer. J . Orthopsychiat. 58(3), July 1988

CHILD CUSTODY MEDIATION:

An Int e rdiscipIinary Synthesis

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Elizabeth J. Koopman, Ph.D., and E. Joan Hunt, Ph.D.

zyxw InstituIe for Child Study, University of Maryland, College Park

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The high divorce rate and increasing number of children affected by divorce

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have paralleled major changes both in divorce law and in the ways in which
social conflicts are resolved. Principles of contemporary law and conflict
resolution are joined with the findings of research on child development in
families of divorce in a conceptual synthesis relevant to the practice of child
custody mediation.

L awyers, judges, teachers, clergy, and

mental health workers, along with the
general populace in America today, are
aware of the high divorce rates in our coun-
try and are increasingly concerned about
the concomitant distress suffered by chil-
dren of divorce and their parents (Felner &
Terre. 1987: Gardner, 1976: Wallerstein
& Kelly, 1980; Weitzman, 1985). There has
been a conscientious search for ways to help
minimize the intensity and duration of the
pain and disequilibrium of this common fa-
milial crisis (Cantor & Drake, 1983;
Hodges, 1986; Kressel, 1985; Saposnek,
1983; Wheeler, 1980). The success of this
effort is likely to depend on the develop-
phy and procedure with regard to marital
dissolution (Freed & Walker, 1988; Kolko,
1985; Krause, 1986; Weitzman, 1985; Wey-
rauch & Karz, 1983). While some have
taken the position that these changes have
themselves been major contributors to the
increased divorce rates (Krause, 1986; Van-
ton, 1977), most scholars in the field have
concluded that much more complex com-
binations of personal and societal factors
have contributed to those increases in the
post-World War I1 years. The latter have
postulated that changes in the laws pertain-
ing to marriage, divorce, and child custody
have been more reflective than determina-
tive of-or at least have interacted with-

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ment of multidisciplinary bases of knowl- changes in societal values and behavior
edge and theory and on interdisciplinary co- (Levinger & Moles, 1979; Nadelson & Po-

operation in inquiry and practice. This
article outlines the theoretical foundations
for one such effort at interprofessional syn-
thesis.
During the past two decades there have
been significant changes in legal philoso-
zy
lonsky, 1984). In addition, both anecdotal
accounts and research results, such as the
California divorce data collected by Weitz-
man (1985), have documented detrimental
outcomes of seemingly benevolently moti-
vated legal reforms. Such findings, along

A revised \,ersion of n paper submitted to the Journal in November 1987.

0 1988 American Orthopsychiatric Association, Inc. 379

 zy
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with evidence regarding a decrease of pa-
ternal involvement in the lives of children
of divorce (Furstenberg & Nord, 1985;
Hetherington, Cox, & Cox, 1982: McCant,
1987; Wallerstein & Corbin, 1986) man-
zyxw
date a comprehensive examination of the
relationship of the law to fairness and qual-
ity of life for all persons experiencing di-
vorce.
This paper, however, will focus on the
implications of legal and societal changes
as they apply to a potential diminution of
harm to parents and children in the divorce
and postdivorce periods. The analysis will
take into consideration another societal phe-
nomenon that has become increasingly ev-
ident in the last two decades. In addition to
the evolution of legal and societal ideas
about marriage and divorce, the postwar
years have also seen advances in the under-
standing and resolution of human conflict
(Burton, 1987; Deutsch, 1973; Fisher &
Ury, 1981: Folberg & Taylor, 1984: Pruitt
& Rubin, 1986). These changes in thinking
have helped generate a now widely visible
“social movement” variously labeled as “CO-
operative conflict resolution” or “nonad-
versarial dispute resolution,” of which child
custody mediation is but one form.
Fortunately, along with these societal
trends there is developing an increasingly
rich and relevant data base regarding the
complex phenomena of stress and adapta-
tion inherent in the process of marital sep-
aration and divorce. Thus, while trauma and
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distress are recognized as modal compo-
nents of divorce for both adults and chil-
dren, it is also being realized that long-term
debilitating consequences need not be in-
evitable (Bloom-Feshbach & Bloom-Fesh-
bach, 1987). Indeed, it is the increasingly
substantiated hope (Bahr, 1981; Mclsaac,
1981; Pearson & Thoennes, 1984; Waller-
stein, 1986) that innovative services, such
as child custody mediation, which reflect in
a clinical setting the insights gained from
research and contemporary reconceptuali-
zations of law and conflict resolution, can
CHILD CUSTODY MEDIATION
contribute much to the postdivorce well-
being of families.
The purposes of this article, then, are to
highlight and integrate contemporary prin-
ciples of family law, disputlc resolution, and
postdivorce child development so as to pro-
vide a comprehensive framework within
which custody mediation goals and strate-
gies can be formulated, and both service
delivery and research protocols can be es-
tablished.
CHANGES IN DIVORCE LA\V
Although the bulk of both the statutory
and case law in domestic relations resides
within the jurisdiction of the states, and de-
spite the continuing variations of the laws
among the jurisdictions, there are definite,
identifiable, and seemingly irreversible mod-
ifications in divorce law that have very im-
portant implications for both divorcing par-
ents and their children (Freed & Walker,
1988; Krause, 1986; Wcitzman, 1985).
Those reform categories of particular im-
portance can be summarized as follows:
I . Grounds for divorce. All states today
have some form of no-fault divorce such as
irretrievable breakdown, incompatibility,
mutual consent, or living separate and apart.
Yet 20 states still retain the option for
spouses to file for divorce on some form of
traditional fault ground.
2. Definition of “property.*’ Nonmone-
tary contributions such as homemaking and
child rearing are now generally considered
as contributions to the economic assets of
the marriage, and such factors as contribu-
tions to professional degrees are increas-
ingly being recognized. Pensions of indi-
vidual spouses are also generally considered
as marital property and subject to division.
3. Property division. With the exception
of the one remaining “title” state (Missis-
sippi), in which ownership is determined
by the name in which the property is titled,
all states have some type OF “equal” or “eq-
uitable’’ division provisions to guide in the
distribution of marital assets.
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KOOPMAN AND HUNT
4. Child cusrody. In custody law, two
trends are becoming increasingly apparent:
the decline in custodial presumptions based
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on the gender of the parent and an increase
in the number of states that have some kind
of joint custody law. States are increasingly
using or adapting the custody guidelines of
the Uniform Marriage and Divorce Act
(Kolko, 1985).
5 . Child support. In almost all states
today there exists, by statute or by case
law, the presumption that the obligation
for child support rests with both parents,
the court having the discretion to apportion
child support obligations according to the
financial circumstances of the parents.
6. Grandparents’ rights. There has been
a rapid growth in statutes pertaining to
grandparent visitation rights. Today every
state has some type of provision acknowl-
edging rights for grandparental visitation.
While the above trends are very real
indeed, their outcomes, in terms of quality
of life for children, parents, and extended
family members of divorce, remain un-
clear. Some observers are concerned that
these changes in law and philosophy may
be causing an increase in the numbers of
disputes and stimulating litigious behavior,
phenomena that can be detrimental to the
well-being of the family members (partic-
ularly children) as well as to judicial
functioning (Derdeyn & Scott, 1984;
Krause, 1986). Weitzman’s (1985) obser-
vation, for example, was that no-fault
divorce, particularly in combination with a
fifty-fifty equal/“equitable” division of
marital assets, resulted in inequitable and
unfair, often disastrous, treatment of women
and children. She concluded that,
No-fault attempts to treat men and women equally-or
as if they were equal-at the point of divorce. How-
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ever, it ignores the structural inequality between men
and women in the larger society. Divorced women and
divorced men do not have the same opportunities: the
women are more likely to face job and salary discrim-
ination and more likely to be restricted by custodial
responsibilities. ( p . 35)
381
In addition, although no-fault may be de-
clining in terms of grounds for divorce, both
the fault mentality and the application of
fault to determinations of parental fitness,
distribution of property, and allocation of
spousal support are alive and well today for
many people in many jurisdictions. None-
theless, within these reforms there also lie
the seeds of hope for positive changes in
both attitude and procedure. The proce-
dural hope is connected to the “revolution
in dispute resolution.”
CHANGES IN DISPUTE RESOLUTION
Nonlitigious methods of dispute resolu-
tion, notably mediation, have been exten-
sively used throughout history, particularly
by certain religious groups such as Quak-
ers, Jews, and Mennonites, and in certain
cultures especially in the Middle and Far
East. In the United States, until recently,
there has traditionally been little use of me-
diation as an alternative means of resolving
disputes, except in the labor-management
field. The reasons for the slow develop-
ment of mediation in such sectors as the
family are complex. Yet, many observers,
including former Chief Justice Warren Bur-
ger, have strongly recommended modifica-
tions of our traditional adversarial judicial
proceedings. Burger (1982) specifically
mentioned divorce, child custody, and adop-
tion as prime candidates for some form of
alternative dispute resolution.
Even though the litigious mentality en-
demic in American society has long been
noted (Burger, 1977), it is only recently
that the adversarial nature of the formal ju-
dicial process has been recognized as po-
tentially damaging to the parties, especially
to those with ongoing relationships, such as
neighbors or divorcing families (Smith,
1982). Currently, mediation is increasingly
viewed as being particularly effective in
helping parties in conflict come to a joint
resolution of their disputes, especially when
it is obvious that amicable relationships must
be sustained, as is the case with parents of
minor children.
The growing number of disputes referred
and settled in ways not involving litigation
has given rise to new writings in the field as
well as to a renewal of interest in earlier
writings. Issues such as “power,” “coop-
eration vs competition,” and “trust vs
mistrust,” addressed in both labor negotia-
tion and human relations, have become im-
portant for mediators working with divorc-
ing parents. In addition, the generic field of
conflict resolution has provided invaluable
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principles, especially appropriate to medi-
ation with divorcing parents; e.g., conflict
in and of itself is not bad, it is when the
methods of dealing with conflict are de-
structive to the parties involved that con-
flict is harmful (Deutsch, 1973). Thus, in
custody mediation, if the conflicts can be
cooperatively resolved with an adequate de-
gree of satisfaction to both parents working
toward the best interests of their children,
the outcomes of the conflict can be con-
structive and a hostile court fight avoided.
Another critical issue concerns conflicts over
values, which are the most difficult to re-
solve (Deutsch, 1973). There are several
ways this concept may be evidenced in the
custody mediation process. Gender-based
values such as “children belong with their
mothers” or “adolescent children should be
with the same-sex parent” are common
examples. Only when such value blocks are
identified and addressed can the decision-
making process be reframed so as to ad-
dress the best interests of this child and this
family with its idiosyncratic needs and re-
sources (Hunt, Koopman, Coltri, & Fav-
retto, in press).
Fisher and Ury (1981) articulated some
negotiation constructs which were also ap-
plicable to the processes of custody medi-
ation. The concept of principled negotia-
tion added an important dimension and
provided custody mediators with a power-
ful rationale to insist upon mediating in hon-
est and forthright ways and to reject the use
CHILD CUSTODY MEDIATION
of covert tactics and subterfuge. These au-
thors offered several other useful concepts:
1 ) Encourage the parties to deal with issues
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and interests rather than with positions. For
example, a custody mediator can change
phrasing such as, “What is your position in
regard to. . .?” into wording such as, “What
are the possible pros and cons of this option
from the vantage point of your child’s best
interest?” Parents are then far less likely to
maintain rigid positions. 2) Separate the
“people from the problem.” By careful
choice of vocabulary, for instance, a cus-
tody mediator can focus on1 problematic sit-
uations and deemphasize the personalities
of the people who may have contributed to
a problem. Thus, the mediator’s saying,
“This part of the interim agreement did not
work out,” sets a vastly different tone than
expressing the problem as: “Dad (Mom)
did not keep the agreement.” 3 ) Have an
objective standard as a basis for testing al-
ternatives. This may be helpful if issues of
child support are included in the mediation.
Using recognized guidelines and formulae
can provide an objective, disinterested stan-
dard with which to assess the adequacy and
equity of child support amounts based on
the incomes and assets of both parents
(Henry & Schwartz, 1986).
In addition, Fisher and LJry’s(1981) prin-
ciples of resisting premature judgments, of
searching for multiple rather than single al-
ternatives, and of avoiding the assumption
of a simplistic, fixed ment,Jity have proven
to be useful guides in developing creative
and individually tailored plans for the re-
structured families of divorcing parents.
Of particular importance at this stage of
development in the field of conflict resolu-
tion are the works of Pruitt and Rubin (1986)
and Burton (1987). While building on tra-
ditional foundations of theory and practice
in diverse disciplines concerned with inter-
personal conflict, their recent works have
presented constructs and strategies that are
in many ways innovative departures from
former schools of thought. Burton (1987)
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KOOPMAN AND HUNT

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noted the importance of moving “from the
traditional approach of power bargaining,
negotiation, and the settlement of disputes
to another approach which is problem solv-
new issues in light of this information, brainstorm to
seek alternative ways of dealing with these issues, and
sometimes even work together to evaluate these alter-
natives. (p. 26)

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ing” ( p . 1 1 ) . He thus stressed the need to
address “deep-rooted conflicts” which in-
volve “not merely interests of persons,
groups, and nations that can be negotiated
but deep motivations, values, and needs
which cannot be compromised” (p. 3). The
problems of parents in the process of di-
vorce often reflect such deep-rooted con-
flicts which are embedded in individual’s
psyches.
Associate Justice Sandra Day O’Con-
Certainly, part of the custody mediator’s
task is to help transform the initial presen-
tation of contending spouses into that of
problem-solving parents and to direct their
energies into essential child-focused activ-
ities.
CHILD DEVELOPMENT
IN THE POST-DIVORCE FAMILY
Clinical observations, research data, per-
sonal experience, and the popular media all

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nor’s belief (1983) that judicial remedies to
many of our common personal and societal
disputes should be called upon only as a
last resort is congruent with Burton’s (1987)
thesis regarding the nature of deep-rooted
conflicts, those which involve
corroborate the fact that, for many parents,
children, and other family members, the
experience of marital dissolution is one of
great distress, emotionally, socially, finan-
cially, and often spiritually. In addition, the
postdivorce stage of life is frequently filled

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. . . deep feelings, values, and needs which cannot be with deep and persistent residues of anger,
settled by an order from some outside authority, such conflict, and hostility, as well as fragile
as a court. These are conflicts which may seem end- standards of living and other evidence of
less, erupting into emotional displays and even vio- individual and familial failure to thrive. Fur-
lence from time to time. ( p . 3 )
ther, divorce must be understood and dealt
Surely, the frequent occurrences of divorce- with as a long-term process that critically
related violence at courthouses, in neigh- affects multiple members of both the im-
borhoods, and in homes, plus the incidence mediate and extended families. (Hether-

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of child kidnapping, are evidence of deeply ington, 1983;Hetherington etal., 1982; Wal-
felt experiences of violation of personal val- lerstein & Kelly, 1980; Weitzman, 1985).
ues, feelings, and needs, and reflect des- Nonetheless, there has also been a growing
perate and hopeless reactions to loss. realization that this long-term failure is not
Pruitt and Rubin’s (1986) break with the only a catastrophic outcome but an unnec-
more traditional cooperation/competition/ essary one (Bloom-Feshbach & Bloom-
compromise model of negotiation, which is Fleshbach, 1987). The emergence and de-
embedded in dichotomous adversarial party velopment of the field of divorce and child
paradigms, was reflected in their “dual con- custody mediation not only reflect this re-
cern” model. This postulated the legiti- alization but, increasingly, determine its re-
macy of simultaneous concerns about the ality. In light of this constructive potential,
outcome for one’s self and for the other, a a basic purpose of the field of divorce, fam-
posture that is highly desirable for divorc- ily, and child custody mediation can be con-
ing parents and that can be translated into a strued as the creation of viable postdivorce
problem-solving, rather than contending and families, and the mediation focus can be
adversarial, mode. The problem-solving conceptualized as the mutually determined
mode is one in which creation of parental agreements that are eq-
. . two people can exchange accurate information uitable and functional for each party as the
,

about their underlying interests, collectively identify family enters into a new stage of life. In
 Table 1
TRADITIONAL VS EMERGING LEGAL, CONFLICT RESOLUTlOlrl.
CHILD CUSTODY MEDIATION zy
AND CHILD DEVELOPMENT PRINCIPLES REGARDING DIVORCING FAMILIES

CATEGORY TRADITIONAL PRINCIPLES EMERGING PRINCIPLES

Evaluative perspective Fault Needlequity
Temporal perspective Past Present and future
Temporal focus Terminal Developmental
Diagnostic perspective Aberrant Normative

Process focus Punitiveheactive
Unit of analysis Individual
Role of professional authorities Prescriptive to client outcomes
Procedural mode Competitive, adversarial
Parental role expectations Separate gender-specific rights
and responsibilities
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Problem solving/proactive
Family System
Facilitative of client self-determination
Cooperative, cor ciliatory
Shared nongender-linked roles
and responsibilities

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child custody mediation, these foci are best
understood as the creation of a post-
divorcehonmarital family within which
child growth and development can be en-
hanced (Girdner, 1986; Kelly, 1983; Koop-
man, 1987; Ricci, 1980). It is essential in
child custody mediation that the mediator
be knowledgeable about those factors which
best predict positive developmental out-
and 5 ) the level of econornic stress in the
child's residential household(s). These fac-
tors are not only conceptuidly complemen-
tary to the emerging prin'5ples of family
law and conflict resolution but can be func-
tionally integrated into the mediative deci-
sion-making process.

comes for children, that such knowledge be
communicated to parents, that each child-
rearing plan reflect as much as possible the
incorporation of these principles of child
growth and development, and that mea-
sures of success in the field include consid-
eration of those factors (Hunt, Koopman,
Coltri, & Favretto. in press).
During the past decade there has been a
growing body of literature from which an
increasing understanding of the nature of
the divorce experience can be derived (Heth-
erington et al., 1982; Hodges, 1986; Kur-
dek, 1983; Wallerstein & Kelly, 1980; Weit-
horn, 1987). Felner and Terre (1987). in a
comprehensive compilation and analysis of
research findings on children's adjustment
to divorce, cited evidence supporting the
AN INTERDISCIPLINARY SYNTHESIS
The integration of legal, conflict resolu-
tion, and child development principles out-
lined above produces a cohesive and useful
paradigm of philosophy and practice for de-
cision making in divorces. The concepts
involved in this model would seem to com-
prise the core of all family mediation deal-
ing with children and to be quite translat-
able into mediation practices. The challenge
to mediators and other professional family
practitioners is to translate these new ways
of thinking into practice so that the positive
potential of these reforms may be realized
for the benefit of families of divorce. T A -
BLE 1 summarizes the integration of these
complementary emerging principles.
As evolving knowledge, principles, and
practices of the fields of family law, con-

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importance of five contextual factors asso- flict resolution, and child development
ciated with the well-being of these chil- merge, there emerges a blending of thought
dren: l ) the levels of interparental conflict, and practice uniquely suited to interven-
2 ) the quality of the relationships between tions which serve to strengthen the healthy
the child and each parent, 3 ) the degree of post-divorce family. The previous dominat-
stability and change in the child's daily life, ing focus on pastfuufrs of individuals gives
4 ) the emotional well-being of the parents, way to a significant emphasis on planning
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KOOPMAN AND HUNT
for thefuture needs of all family members.
It is acknowledged that while the former
spousal roles of husband and wife are end-
ing, there is a vital need for ongoing col-
laborative involvement in child rearing by
both parents. It is acknowledged that sub-
stantive, disciplined client self-determ-
ination is best accomplished with the assis-
tance of a knowledgeable and impartial third
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party and in accord with legal and societal
expectations for continued responsible pa-
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rental functioning; among the criteria used
to guide the parental decision-making pro-
cess are the factors, such as those summa-
rized by Felner and Terre (1987), which are
known to be important to child growth and
development.
DISCUSSION
While it is important to understand and
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conceptualize child custody mediation in a
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comprehensive and interdisciplinary way,
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at this stage in the evolution of the field it
is equally important to: I) Appreciate that
cooperation and collaboration in interdisci-
plinary practice are vital components to the
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success of mediative interventions (Fol-
berg & Taylor, 1984; Kressel, 1985; Wal-
lerstein, 1986). 2 ) Recognize that educa-
tion and training in the field remain
problematic (Folberg & Taylor, 1984;
Koopman, 1985a, 19856; Saposnek, 1983).
3 ) Acknowledge that a great deal of re-
search, evaluation, and development is nec-
essary if the potential of the field is to be
understood and realized (Koopman, 19856,
1987; Kressel, 1985; Pearson & Thoennes,
1984).
Thus, at a very fundamental level, an
interdisciplinary united front is called for.
Such structures as multidisciplinary profes-
sional associations and forums for the pre-
sentation and discussion of issues of law,
legal procedure, mediation, divorce, child
development, and professional practice are
necessary to bring about greater interpro-
fessional appreciation and networks. Coop-
erative and comprehensive research endeav-
ors are essential. Such institutions as
universities, governmental agencies, and
courts, as well as private practitioners, can
contribute to the formulation of appropriate
research questions, data collection, and the
broad dissemination of results to practition-
ers and policy makers. At a more personal
and individual level, each family practi-
tioner, whether attorney, mediator, mental
health professional, or court officer, can set
up practice protocols that systematically in-
clude appropriate interdisciplinary consul-
tations. In such ways, through interdisci-
plinary understanding and collaboration in
developing services for families in the di-
vorce transition, there can be real hope for
the diminution of the damaging sequelae of
divorce and for the enhancement of func-
tional familial restructuring in the post-
divorce period.
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