Over the past two decades, a growing number of judges, attorneys, legal scholars, mediators, and mental health professionals have challenged the notion that the only way to resolve family disputes is through adversarial court proceedings. These experts believe that the win-lose nature of these proceedings often exacerbates existing conflicts to the detriment of both parents and children. This is particularly true in cases in which parents, as part of divorce, separation, or paternity proceedings, are seeking to resolve disputes related to parental decision-making, parenting time, and residential arrangements of children.
It is clear from the testimony before the Commission and a review of the literature that the preferred approach to resolving parental disputes is negotiation, not confrontation.2 In recognition of this, some courts have instituted procedures for early referral of parents to services that will help them come to agreement about what is best for their children, before thrusting them into the adversarial process of the court. These courts are finding that by helping parents resolve together the arrangements for their children's care, continuing conflict between the parents is diminished, greater compliance with court orders is achieved, and costs to both parents and the courts are reduced all to the benefit of children.
Drawing on the experience of courts that have been successful in making their systems more family-friendly, the Commission has identified several core components:
All of these components are important to shaping a court system that is effective in helping parents resolve disputes about parental decision-making, parenting time, and residential arrangements of children. For example, implementing one component (such as a mediation program) without the others (such as parent education and orientation and welltrained, competent mediators) could well be counter-productive. The Commission therefore urges State legislatures and court systems to improve their laws and procedures for resolving parenting disputes by adopting all of these core components. The following sections of this chapter address these components in greater detail.
The very terms custody and visitation evoke a world in which one parent has "dominion" over the child and the other parent is seen as merely a "visitor" in that dominion. The Commission believes that this mind-set should be changed and these terms replaced with terms that more accurately describe the responsibilities of both parents in providing for their children's care and support.
The Commission heard testimony from a number of witnesses who advocated replacing the traditional terminology of "custody" and "visitation" with terms that neither convey a sense of ownership over the child, nor imply that one parent is merely a transitory figure in a child's life. Katharine Bartlett, a law professor at Duke University, urged abandoning the traditional terms as a first step toward reconstructing the way in which disputes over parental responsibilities are resolved.3 Robert Tompkins, former head of the Association of Family and Conciliation Courts, testified that the terms "custody" and "visitation" imply power and control and recommended that "parental rights" be recast as "parental responsibilities."4 Isolina Ricci of the Judicial Council of California suggested that the term "custody" be eliminated and that parents' rights and responsibilities be delineated in a detailed parenting plan.5 Ernest Sanchez of the Los Angeles Conciliation Court recommended that the emotionally charged terms "custody" and "visitation" be eliminated and replaced by terms that encourage positive communication and cooperation, such as "parenting plans" and "periods of parental responsibility."6 Raymond de Levie of the Ohio Children's and Parents' Rights Association cited a bill before the Ohio legislature that would replace the term "visitation" with the term "parenting time."'
The Commission agrees with these witnesses that nomenclature should more accurately address the responsibilities of day-today parenting and care for children. The Commission recognizes that most State statutes and a large body of case law use the terms "custody" and "visitation," and that a change in terminology may therefore require action of the State legislature. The Commission urges court systems to determine whether they have the authority to change the terminology without or pending legislative action, and to do so as promptly as they can. The Commission is convinced that such a change will have a positive impact on parental cooperation and the well-being of children.
Recommendation 1:
Courts and legislatures should replace the terms "custody" and "visitation" with terms that more accurately describe parenting responsibilities and are less likely to foster conflict, such as "parental decision-making," "parenting time," and "residential arrangements" for children.
Courts that have jurisdiction over family matters often do not have the status and the resources necessary to fulfill their missions. They are perceived as inferior courts, literally, because appeals must be resolved by a higherlevel trial court, or, figuratively, because the quality of their judgess and the amount of their resources do not match those of other trial courts. All too often the presiding judges have too many cases and too little interest in family matters.
Accordingly, a major step toward making sure that courts addressing family matters are effective is to assure that they have the appropriate stature. The Commission believes that States should ensure that courts addressing family issues be trial courts of the highest level in the State, and not subject to review by other trial-level courts. They should have judges and other court personnel whose qualifications and pay are at least on par with those of the highest-Level trial court judges. Finally, courts addressing family issues should have sufficient resources to assure reasonable caseloads and effective management and coordination systems.
Recommendation 2:
States should assure that courts charged with adjudicating family matters are at the level of the highest trial courts of general jurisdiction and have appropriate resources, high-quality judges, and well-trained court personnel.
No matter how great the stature or lavish the resources, to be effective, courts must be well-managed. Courts need to assure that cases are properly and professionally handled, appropriately referred, and decided with consideration of the unique circumstances of each particular family. They need to inform parents about court procedures, the options available to them, and the impact parental decisions may have on children. From intake to case resolution, courts need to assign, schedule, and track a family's progress through the court system. When the actions of more than one court involve the same family members, courts need to be aware of these pending and past actions and outcomes, including those of the courts of other States, when rendering decisions. At all stages of the court process, relevant information must be available to appropriate court personnel. To accomplish these goals, the Commission believes that courts should provide effective intake and referral, orientation and education, and court coordination and information systems.
Intake and Referral
For a court to effectively meet the needs of separating, divorcing, and unmarried parents and their families, it needs to establish a means of tailoring its services, as much as possible, to each family's individual circumstances. An important first step is to establish an effective intake and referral system.
Intake units should provide families with a single initial point of contact with the court. Trained intake professionals should assess the family's immediate and long-term needs and refer parents and, potentially, other family members, to the appropriate services provided by the court or by others. A first step for most parents will be referral to the court's orientation and parent education program. For parents with a need for more intensive counseling or with serious problems associated with the divorce or separation, such as substance abuse or domestic violence, referral to other appropriate services will also be warranted.
Even the best court system cannot provide families with the full range of services they may need, especially on an ongoing basis, and therefore should coordinate its efforts with other community resources. Intake units should have the authority to refer families to community services, or, in some circumstances, request that courts order families to use these services. The services can include crisis intervention, family violence counseling, family support programs, and parenting skills training. The services should be tailored to meet the specific needs of each family and to produce both short-term help and long-term solutions. Chapter 4 discusses in more detail the many ways in which community institutions can assist families in difficulty.
Recommendation 3:
Courts should provide intake and referral services that are appropriate to the individual needs of separating, divorcing, and unmarried parents.
Orientation and Education
When separating, divorcing, and unmarried parents come to court for resolution of their disputes, they are usually unfamiliar with court procedures and the legal options available to them. Even when they are represented by counsel, their understanding of the way the system works may be limited. Parent orientation and education programs can help give parents a basic framework for understanding the process and facing the challenges it poses as their case moves through the legal system. The programs also can help parents understand and prepare for the effects their decisions will have on their lives and the lives of their children. Orientation and education programs can lessen parental anxiety about the court process by describing how the court operates, what services it provides, and how it can help parents reach agreement about what is in the best interests of their children. These programs can provide basic, rudimentary information about legal requirements that affect parental decisions. They can help parents understand common legal terms, issues they need to address, and forms that they may be required to complete. Parent education programs can also address the impact of parental separation on children and help parents keep children out of the direct line of parental conflict. Joan Entmacher, Senior Policy Counsel of the Women's Legal Defense Fund, and Janet Johnston, Director of Research for the Center for the Family in Transition," were among the Commission witnesses who testified that exposure to parental conflict usually is the most damaging aspect of family breakup for children. Judith Wallerstein, Founder and Senior Consultant for the Center for the Family in Transition, observed that:
Conflict can destroy ... What protects the child is a civil, rational, responsible relationship between (the) parents and realistic planning that is sensitive to the (needs of the) growing child.12
PAGE 33 MISSING
Agenda for Legal Action observed that "...in virtually all cases, in virtually all communities, the myriad of courts... do not communicate adequately with each other, resulting in unnecessary delay, duplication, and contradictory rulings and recommendations." The piecemeal approach of many courts is illustrated by the following:
A wife can charge a husband with battery in one of three courts. A husband may find himself ordered out of the home by a criminal court judge and then the subject of a divorce and custody battle based on his absence from the home in Domestic Relations Court. Child abuse cases can be found in Domestic Relations, Juvenile, or even the Probate Division of the court, depending upon the circumstances. Inconsistent child support orders can be entered by different judges. Different guardians may be appointed to represent children in separate criminal and juvenile court proceedings. Termination of parental rights can occur in one court without notification of another which issues a child support order.
In at least one case, the lack of coordination has proven to be fatal.
One way to achieve the necessary coordination within a jurisdiction is through a unified family court to which all family-related matters are assigned. Some States already have unified family courts, and others are considering establishing them. Proponents argue that family courts are more likely to provide easy public access; reduce emotional trauma for the parents; coordinate information on cases related to families; result in better, more expedient legal determinations; avoid duplication; and provide collateral services such as intake, orientation, education, and mediation.
Whatever advantages for coordination unified family courts may have, the Commission wants to be clear that it in no way wishes to undermine the authority and discretion of courts and court officials to prosecute family violence offenses as criminal matters. Court systems should be guided by consideration of what will most effectively protect the victims. Courts and court officials may chose to deal with individual cases of child abuse by adults as civil matters or refer them for criminal prosecution, as they may construe it to be in the best interests of the child victim. In cases of family violence directed toward adults, courts should not deter adult victims from filing criminal charges. When family violence matters are before the criminal courts, civil courts should assure that these cases are prosecuted vigorously and defer to criminal jurisdiction. When matters concerning the same family members are before different courts, the courts should exchange information, taking care to protect the confidentiality of the information when the safety of a victim of abuse might otherwise be compromised.
The Commission considered endorsing the concept of a unified family court system for every State but decided not to do so. The Commission believes that a court's structure is less important than the stature the court has within the State system and how it conducts its business. States should configure their court systems in a manner best suited to their needs. However, they should ensure that courts addressing family issues have complete, timely, and effective information, including information on current and past court actions within and across courts that involve the same family or family members.
Interstate cases pose particular problems of court coordination, in part because of a lack of clarity about which State's rules apply to prevent conflicting orders and ensure effective enforcement across State lines. For example, sometimes a parent will be subject to orders in more than one State that are in conflict with each other. One order may have been made on an emergency basis, but without a stated limit to its duration. There may be confusion as to whether the State that issued the original order has continuing jurisdiction over the order. States may have conflicting statutes, or conflicting interpretations of their statutes, which further complicate resolution of the issues. More tragically, in cases of parental kidnapping, there may be confusion about when Federal or State law applies, or which State has jurisdiction. In all these cases, the confusion or conflict makes it difficult for courts to resolve the issues before them.
The Commission did not have the time or resources to fully consider solutions to these interstate problems. The National Council of Commissioners on Uniform State Laws is currently studying these issues, however, and the Commission supports its efforts to recommend workable solutions to these problems.
Finally, for courts to have timely and complete information about current and past court action involving a family, they must employ state-of-the-art management information systems that collect information and help coordinate cases and services effectively. Purchasing computer hardware is not enough. A court must carefully consider what information is needed, the case flow, and security issues when planning its system. It must ensure the system's capacity to accommodate increases in the number of cases and the need to expedite decisions that affect children and families. It must take care to protect the confidentiality of information that should not go beyond the judge or other appropriate court personnel, especially when the disclosure of such information would compromise the safety of individual family members.
The Commission believes that an effective management information system should assure: a
Recommendation 5:
Courts should adopt effective court coordination and information systems that provide complete, accurate, timely and, (when appropriate) confidential information, including information on current and past court actions within and across courts that involve particular families or family members. The coordination of family matters before the courts should in no way undermine the authority or discretion of court systems to prosecute family violence offenses as criminal matters.
Recommendation 6:
The National Council of Commissioners on Uniform State Laws (NCCUSL) should make recommendations for revisions to the Uniform Child Custody and Jurisdiction Act and other relevant laws that would clarify jurisdictional issues, resolve subject matter conflicts, and improve communications between courts in interstate cases affecting parental decisionmaking, parenting time, and residential arrangements for children.
Courts should require divorcing, separating, and unmarried parents to attempt to develop a parenting plan. By parenting plan, the Commission means a written description of the parental decision-making, parenting time, and residential arrangements that parents who do not live together agree upon for their children. A parenting plan is usually more specific and detailed than parenting arrangements ordered by a court because it is developed by parents in consultation with each other and is intended to minimize ambiguity.
The Commission's support of parenting plans is based on the successful practice of a growing number of States to encourage divorcing and separating parents to reach agreement about parental arrangements for their children and to specify those arrangements in a written plan. Fifteen States require, or give courts the authority to require, the use of a parenting plan in a variety of circumstances.29 In 10 of the15 States, parenting plans are required only in joint custody cases. Of the remaining 5 States, Washington State requires parenting plans in all cases, while California, Mississippi, and Pennsylvania authorize courts to require parenting plans in all or a subset of cases.31 An additional 15 States expressly recognize some form of "parental agreement," although the circumstances in which such agreements are used are not always clear.
The Commission believes that a parenting plan is the best blueprint for parents' future ties to their children, because it reflects the personal choices of the two people in charge of raising their children. The process of arriving at a parenting plan also should help parents to think through and address issues that are important to their continuing relationship to their children. Agreeing on the resolution of these issues as part of the plan should minimize ongoing conflict between the parents as well as their need to turn to the court to resolve that conflict.
Parents should develop their plan according to their personal situations. For example, if one parent is unable or chooses not to have the child reside with him or her for extended periods of time, and cannot manage extended or frequent time with the child, a parenting plan may be very brief. In contrast, if the children will reside at both parents' residences, regularly traveling between both households, the plan probably will need to be quite detailed. The latter plan likely will include items as specific as how the children will be picked up and dropped off at the respective households
Although parents should have primary responsibility for developing their parenting plan, States and court systems should set legal parameters and provide guidance to parents on issues that should be addressed in the plan.
With respect to legal parameters, States should make clear that parenting plans should be established not only by separating and divorcing parents but also, once paternity is established, by unmarried parents who live apart. In addition, States should decide whether issues of child support will be covered in the parenting plan, making clear that if child support is included the amount of support agreed upon must at a minimum conform to the State's federally mandated child support guidelines. Finally, States should specify the process for and standard of review to obtain court approval of the plan or an amendment to the plan.
With respect to the issues that parents should address in the plans, States should outline these with some specificity, perhaps by providing preprinted forms for parents to complete (see Appendix F). Although parents may not be required to resolve all the issues, they should at least have to decide together that an issue does not need resolution. Examples of issues that parents might be required to consider in developing their plans include time with children on holidays, grandparents' and other relatives' time with children, and the way in which the parents will approach decisionmaking regarding the children's religious and educational upbringing or medical treatment.
Special care should be taken in parenting plans to address the changing needs of children as they grow older. For example, as a child's after-school activities increase changes in the parenting time arrangements set forth in the original plan may be warranted. Accordingly, parents should build into their parenting plan and courts should permit a procedure that allows them to agree on certain changes to the plan without having to go back to court.
The Commission debated whether to recommend automatic, periodic court reviews of parenting plans, but decided that the initiation of such reviews should be left up to parents. Allowing parents to decide when to review the plan is more responsive to the needs of individual families and less costly to the system. Some parents may never feel the need to review their parenting plan, while others may require frequent scrutiny of the plan. Parents should specify in the initial parenting plan those events that would trigger reviews. At the same time, the plan should provide that returning to court for further dispute resolution efforts when parents do not agree on particular changes remains an option as well.3s In turn, States should specify how courts will treat parental amendments to parenting plans.
The Commission believes that courts should give substantial deference to the agreements that parents reach in parenting plans. Parents know the details of their lives better than anyone else; they know what works and what doesn't work for themselves and their children. However, if the court finds that an agreement is clearly not in the best interests of the children, or that it is not the result of a fair mediation process, the court should exercise its prerogative to refuse to approve the plan or to require changes in the plan. Once a parenting plan is approved by the court, it should be made a part of the court's order, enforceable as any other court order would be.
All 30 States that recognize parenting plans or other parental agreements require their incorporation in court orders.36 All these States require courts to review parental agreements to ensure that they do not contain arrangements that are contrary to the best interests of the child, giving deference to the agreements that parents have reached. In the States that prescribe specifc issues that must be addressed in a parenting plan, courts additionally are required to determine whether these issues are addressed in the plans.
An exception to the general rule that courts should give substantial deference to negotiated parenting plans is necessary with respect to child support. As discussed above, if a State permits child support issues to be included in the parenting plan, the support award that results must at a minimum comply with the State's federally mandated child support guidelines. The court has an obligation to closely review the plan to ensure this compliance.
Recommendation 7:
Courts should require separating, divorcing, and unmarried parents living apart to attempt to develop parenting plans that set forth parental decision-making, parenting time, and residential arrangements for their children. Courts should provide guidance for the development of parenting plans by identifying the legal parameters and issues that plans should address and by making forms available to help parents develop the plans.
Mediation provides a process whereby parents, with the help of a skilled and neutral mediator, can negotiate their differences. A mediator is a professionally trained person who works with parents in a safe, structured environment to help them develop and agree on a detailed parenting plan.3' A mediator can help parents articulate their positions in a way that helps them reach their own resolution of their differences. A mediator also can help parents put the interests of their children first and develop conflict resolution skills that continue to be useful to them in their ongoing relationships with each other and with their children.
The use of mediation to help divorcing, separating, and unmarried parents come to agreement on issues of parental decision-making, parenting time, and residential arrangements for their children has grown significantly over the past 20 years, but it still cannot be considered a widespread practice.39 Twenty-seven States have laws that either permit or require courts to offer mediation services in parenting disputes.4o Five of these States require that parents participate in mediation, under varying circumstances, when they have not reached agreement on their parenting arrangements-California, Florida, Maine, North Carolina and Wisconsin (see Appendix G).
Most parents who participate in mediation either by choice or judicial requirement reach agreement. A review of 15 research projects, which examined program outcomes in 75 courts, three counties, eight cities, and four States, found that agreements were reached in 50 to 75 percent of the cases. The Commission's own survey of programs in the five States that require parents to mediate their disputes found similarly high settlement rates. Four of the five States, and one Wisconsin county, provided the Commission with data on the total number of cases referred to mediation and the percentage that reached agreement. Settlements were reached in 80 percent of the cases in Maine in 1993, in 71 percent of the cases in Florida in 1994, and in 56 percent of the cases in North Carolina in fiscal year 1994-95. In Wisconsin, where statewide data are unavailable, a 1991 audit revealed a settlement rate of 92 percent in the State's second-most populous county.
The ability of parents to reach agreement in mediation greatly reduces the number of contested cases and, therefore, trials to resolve disputes about parental decision-making, parenting time, and residential arrangements for children. Mandatory mediation in California, for example, has reduced the number of such trials from 20 percent of all contested cases to 5 percent of all contested cases. Fewer trials mean lower attorney costs to parents as well as savings in court time and resources.
Although many parents initially are reluctant to try mediation, parents who are required to mediate usually discover that they like the process and come to agreement as frequently as those who enter mediation voluntarily. According to Jessica Pearson, Director for the Center for Policy Research, most assessments find that 70 to 90 percent of all those who use either mandated or voluntary mediation programs are satisfied with the results.4s
Individuals who negotiate their parenting disputes through mediation are also much more satisfied with the process and the outcomes than those who contest their cases in court. A 1991 California survey of 2,504 parents who participated in mediation showed an overall satisfaction rate of 76 to 82 percent.46 Conversely, most parents are not very satisfied with courtroom settlements of disputes. In a 1981-83 survey of litigants in two cities and one State (Los Angeles, Minneapolis, and Connecticut), between 50 and 70 percent of the respondents found the legal system to be impersonal, intimidating, and intrusive.4' Another study indicates that parents who had decisions imposed by judges tended to view themselves as winners or losers and carried that attitude for many years thereafter.
Parents who use mediation report that the process increases the control they have over the decisions reached in the final settlement.49 Mediation often makes parents feel that they are full partners in decisions that affect their children, and this sense of empowerment of ten correlates with satisfaction with the final outcome. In addition, parents who mediate their disputes report feeling less intimidated by the other parent and less pressured to agree to something they do not want than their counterparts who adjudicate their disputes in court.5o
Based on the available evidence, the Commission believes that courts should make mediation services available to separating, divorcing, and unmarried parents to determine their ongoing parenting responsibilities and should, with some exceptions, require parents without an agreed-upon parenting plan to try to resolve their differences through mediation. In instituting mandatory mediation programs, however, courts need to protect parents by addressing several critical issues: determining which parents should be required to participate; identifying which issues should be mediated; establishing cost and qualifications of mediators; and ensuring court oversight of both the process and the effects of mediation. Each of these protections is discussed in greater detail below.
Parents who develop a parenting plan on their own, or with the help of others (e.g., their lawyers, clergy, private mediators, or through a community-based dispute resolution center) before coming to court should not be required to participate in mediation. Rather, as previously discussed, these parents should be required to attend a court orientation and education program before the court approves their parenting plan, to help assure that in arriving at the plan they have considered all the options and issues before them. All other parents should be screened for referral to mandatory mediation.
The Commission recognizes that there are circumstances in which characteristics of the parties or other factors may make mediation inadvisable or preclude a fair mediation process. In these circumstances it is essential that exceptions to mandatory mediation be recognized. Specifically, the Commission believes that mediation should not be mandated in cases of domestic abuse, or where substance abuse, mental impairment, or other factors preclude a fair mediation process.
Several witnesses testified to the Commission that mandatory mediation may compromise the safety of parents or children in families with a history of family violence. A woman who is a victim of domestic abuse could be intimidated by the prospect of having to negotiate with her abuser. That sense of intimidation could place her at a disadvantage in the mediation process. There may be other circumstances in which the parties do not come to the table with equal bargaining power as well. Joan Entmacher, Senior Policy Council at the Women's Legal Defense Fund, warned that compulsory mediation between parties with unequal power could lead to a scenario in which the more powerful party coerces a quick settlement from the less powerful party. In these situations as well, individuals should not be required to participate in mediation.
Not all parents who are required to participate in mediation may be able to come to agreement on a parenting plan. The Commission believes that it should be left to the discretion of trained mediators, subject to appeal to the court, to decide when further mediation is unwarranted. If parents cannot agree on a parenting plan after mediation has been attempted, they should be referred to the court for judicial resolution of their differences.
The Commission recognizes that some parents may want to have their attorneys or other advisors counsel them on issues in mediation, participate with them in the process, and review the mediated parenting plan. In the Commission's view, it is appropriate for attorneys, clergy, or other advisors to play such a role. Although courts or mediators should have the discretion to exclude attorneys, clergy, or other advisors from participation in the mediation sessions if the advisor's presence is determined to be counter-productive,52 this discretion should be exercised sparingly.
Issues of parental decision-making, parenting time, and residential arrangements are the principal issues for mediation. How-ever, the court may choose to refer other is-sues to mediation as well, such as child support, spousal support, and the division of property. It bears repeating, however, that any mediated decisions with respect to child support require careful judicial review, since under Federal law child support orders must comply with State child support guidelines.
Ideally, if parents are required to participate in mediation, they should not have to pay for mediation services, just as they do not have to pay for judicial services. However, if the imposition of fees is necessary in order to offor mediation, courts should assure that such fees are based on the ability of participants to pay, with provision for fee waiver for the lowest-income individuals. Some courts have established a fund to cover the costs of mediation by increasing their filing fees and by assessing mediation fees on those who can afford to pay. California's program was supported originally filing fees, but it is now part of the court's budget, although many of its courts continue to charge fees for services and grant fee waivers to those who cannot afford to pay. Maine requires a one-time fee of $ 120 that may be wived. North Carolina's mediation program is State-funded but collects fees from those participants who can afford to pay. Wisconsin's program is partially funded through filing fees; the State's first mediation session is free, but subsequent sessions cost either $200 or are based on a sliding scale fee and ability to pay. In Florida, if the parties cannot afford the fee and the court does not have in-house mediators available, the State prohibits referral to mediation.
Crucial to the success of any mediation program is the quality of the mediators. The Commission believes that the appropriate authorities in a State should establish qualifications for mediators and assure that all mediators working on court-assigned cases meet those qualifications. California, for example, has set qualifications by statute. There are several organizations, including the American Academy of Matrimonial Lawyers, that will train individuals to become mediators and certify their qualifications. Some court systems, such as the District of Columbia, have their own mediator training programs.
In addition, it is important to have standards governing the mediation process. For example, some States have standards of practice to help mediators assure that both parties to the mediation maintain a relatively equal negotiating relationship, prevent bias, determine when to end an effort to reach a mediated agreement, and assure that the parties provide feedback to the mediator on their satisfaction with the process. California has Uniform Standards of Practice, which are Standards of Administration in its Rules of Court, that both set the qualifications of mediators and establish standards of practice for the mediation process.
Critical to the success of mandatory mediation is court oversight. The court should be alert to common problems and establish methods for addressing them. For example, if a dispute arises as to whether an attorney should be permitted to be present during a mediation, the process for resolving the dispute should be clear. In addition, the court should assure that mediation processes are fair and that parents are not penalized for failure to reach agreements. Finally, the court should be alert to continuing improvements that can be made in the mediation process. Although the Commission believes that mediation is an extremely promising method of resolving parental disputes, it is important for courts to continue to experiment with different mediation models and to learn from their experiences. In addition, the Commission urges courts to share their experiences with interested national organizations (e.g., the National Center for State Courts and the State Justice Institute) and use the information collected by these organizations to improve their own mediation programs. To measure the continued effectiveness of court-based mediation programs, courts should consider collecting information on user characteristics, user satisfaction, and settlement rates, among other factors. California's Uniform Statistical Reporting System collects information on user characteristics and satisfaction.
Recommendation 8:
Courts should require separating, divorcing, or unmarried parents living apart who have not agreed on a parenting plan to try to resolve their differences through mediation, except in cases involving domestic abuse, substance abuse, mental impairments, and/or other characteristics of the parties that would make mediation inadvisable or that would preclude a fair mediation process.
High-quality court personnel from in-make workers to judges are essential to ensuring a family friendly court system and providing competent, effective assistance to individuals who come before the court.
All court personnel must be well-trained to recognize family situations that need special attention. Judges, mediators, and attorneys representing individuals in family-related matters should have some basic knowledge of family dynamics and an understanding of the changing needs of children as they grow older as well as knowledge of family law. Other court personnel, such as intake workers, should be knowledgeable about both court and community resources to assist families, and be trained to recognize problems such as substance abuse and child and spouse abuse.
Professional organizations such as the American Bar Association, National Judicial College, National Council of Juvenile and Family Court Judges, Conference of State Court Administrators, National Association of State Judicial Educators, Society for Professionals in Dispute Resolution, Academy of Family Mediators, Association of Family and Conciliation Courts, and State and local bar organizations should continue to play an active role in increasing the professional capacity of court personnel to help families resolve their parenting disputes.
A crucial component of developing family-friendly courts is to expand access to legal counsel. More and more people are having to resolve family matters in court without legal representation. According to Judge James Garbolino of the Placer County, CA, Superior Court, the unprecedented rise in the number of parents bearing children outside marriage has a direct influence on the burgeoning size of the population in need of legal counsel and mediation services.55 Moreover, both lowand middle-income individuals have difficulty obtaining affordable counsel.56
There are no nationwide data on the number of unrepresented litigants involved in family-related cases. However, information collected from local courts reveals that a great many parents choose to represent themselves. Judge Garbolino, in testimony based on a review of data maintained by a number of California counties, estimated that in eight or nine cases out of ten there is at least one party unrepresented by counsel.5'
Information from Maricopa County, AZ, reveals a similar trend. In 1991, 92 percent of the divorce cases involved self-representation compared to 25-50 percent of the caseload in 1985.Ss Similarly, Robert Tompkins, immediate past president of the Association of Family and Conciliation Courts and Deputy Director for Family Services, Family Division, Connecticut Superior Court, testified that in 40 percent of the family cases in Connecticut, at least one party represented himself or herself double the percentage of 10 years ago, and a 20-fold increase from 20 years ago.5
The right to represent oneself has been protected over the years by the courts. However, the task of representing oneself in court is formidable. It requires a knowledge of the law; an understanding of complex rules of procedure, discovery, evidence, and appeal; the filing of motions; the time to prepare and present one's case; and the ability to challenge the credibility and legal arguments of the opposing party.61
Helping parents to resolve their parenting disputes through mediation is one way of providing assistance to parents who cannot afford legal counsel. Even a mediated settlement, however, can benefit from review by an attorney. And, in some cases mediation may not be appropriate or will break down and resort to the courts will be necessary. Thus, even though mediation may reduce the time and cost of legal services, those services are still needed and there is still a greater demand for legal services, especially for low-income parents, than can be provided. With some training, many attorneys can fulfill a commitment to provide Pro bono legal services by helping families resolve their disputes. The Commission urges a concerted public and private effort, especially through local bar associations, to increase the availability of pro bono attorneys to help such families.
Recommendation 9:
Public and private efforts should be made to increase the competence of attorneys, judges, and other court personnel on issues of family 1aw and family dynamics and to increase the availability of counsel for pro bono work in family law cases.
Family-friendly courts should ensure that their services are available to all parents, whether they are unmarried, separated, or divorced. Unmarried parents should be given the same institutional respect in deciding their parenting responsibilities as that given to separating and divorcing parents. While the Commission believes that adoption of the above recommendations will make courts more effective and more family-friendly for all parents, the special circumstances of unmarried parents require further consideration.
For example, the establishment of paternity is a necessary prerequisite to establishing a legal right to parenting time or a role in parental decision-making for unmarried fathers. But because paternity is often established by voluntary acknowledgement or in an administrative proceeding, rather than by a court, there is often no way to easily resolve issues of parenting time, residential arrangements, or parental decision-making at the same time. States and court systems need to address ways of assuring that these parenting issues are resolved promptly for unmarried parents.
Some jurisdictions have recognized the need to have unmarried parents develop parenting plans after paternity has been established. The Lucas County Juvenile Court of Ohio requires parents in all paternity cases to attempt to develop parenting plans through mediation. Teresa Martin, Coordinator of Mediation Services in Lucas County, testified that the court initiated the requirement because of a heavy paternity caseload. In Lucas County 52 percent of all children are born to unmarried parents. Eighty-one percent of unmarried parents reach agreement on parenting plans through the mediation process.6z California's statute on mandatory mediation requires that unmarried parents who establish paternity utilize mediation services to attempt to develop parenting plans. In 1993, 20 percent of the cases in California's court-based mediation program were unmarried parents.
Finally, community institutions and programs can do much to help encourage unmarried parents to establish paternity and parenting plans and direct them to courts and other resources that will help them to do so.
In sum, the Commission recommends that courts with jurisdiction over family matters have sufficient status, adequate resources, highly qualified judges, and well-trained court personnel, and that they embrace certain principles that aim to make them more family-friendly. The objective of adopting these principles is better decision-making for children and families, which will result in a better informed court, a court that is responsive to the needs of the families who come before it, a court that helps parents reach their own decisions about the best arrangements for their children, and a court that requires that the future arrangements of individual parents with their children be spelled out in a parenting plan. The Commission believes that these are important steps toward reducing hostility between separating, divorcing, and unmarried parents, and empowering each parent with respect to his or her future parenting role. The Commission believes that this will result in increased well-being for children, as well as more effective and efficient court systems
Back to Chapter 1
Back to Chapter 2.