With Growing Numbers of Fathers Raising Children, Custody Increasingly Contentious, Says American Academy of Matrimonial Lawyers

PR Newswire, © 1999, PR Newswire

CHICAGO, Feb. 4 /PRNewswire/ -- Recent census data indicate that a record 1.4 million children under 18 are living with divorced fathers, reflecting a trend toward increased acceptance by the courts in awarding custody to fathers, according to the American Academy of Matrimonial Lawyers, the nation's top divorce and matrimonial law attorneys.

However, as custody decisions have become increasingly gender-neutral, the complexity and contentiousness of such cases have increased significantly, say the lawyers.

"In the past, unless the mother was unfit to be a parent, custody almost always went to her. With that presumption increasingly being replaced by 'the best interests' of the child, custody has increasingly become a battleground for divorcing couples that can be the most draining aspect of a divorce, both emotionally and financially," according to George Stern, president of the Academy.

For instance, psychological experts are increasingly used to advocate which parent represents the best interests of the child, while there are no nationally recognized standards for admissibility and reliance on such expertise. This adds to the expense and complexity of custody decisions today.

According to Leonard Karp, a Tucson attorney who has lectured extensively on psychological testing, "In today's world, King Solomon would have appointed a psychologist to conduct a full psychological evaluation to determine which mother had better parenting skills and perhaps which mother was determined to be the 'psychological parent.'"

This trend has led to the use of the Minnesota Multiphasic Personality Inventory as probably the most widespread test in custody litigation. However, interpreting psychological data remains an inexact science with little uniform agreement or application.

"While few can doubt that the courts need to develop a program to aid in the psychological aspects of custody litigation, no one has yet to develop a plan to provide this assistance," according to Keith Nelson, a Dallas attorney and Academy fellow who has lectured on custody issues.

In addition, there also are a number of differing psychological theories being applied to custody cases, which have varying degrees of acceptance.

Among the most controversial are those of Dr. Richard Gardner, who has coined what is known as Parental Alienation Syndrome (PAS), in which one parent alienates the child against the other parent.

While some of Dr. Gardner's scientific methods and findings have been criticized, most lawyers have frequently witnessed the effects of parental alienation in divorce cases.

Another leading authority on custody, Dr. Richard Warshak, seeks to objectively identify the various factors of a spouse's parenting abilities and award custody based on those criteria. He also encourages mediation and other Alternative Dispute Resolution techniques to avoid trauma to children.

Adding to the complexity of custody cases is the fact that the courts themselves offer different interpretations of how much and what kind of psychological expert testimony will be permitted.

The 1993 U.S. Supreme Court case of Daubert v. Merrill Dow Pharmaceuticals, Inc. set specific standards for judges as the gatekeepers of expert scientific testimony. However, some judges apply the case narrowly and some more broadly in allowing psychological expert testimony.

Academy members note that while custody decisions are increasingly gender-neutral, women still receive the lion's share of custody awards, although exact statistics nationally are difficult to come by.

"Today, courts are more than likely to grant custody to the spouse who is currently the primary care-giver," according to Stern. This was illustrated in the recent Hector case in Miami, where the wife, a high-powered attorney, lost custody to a stay-at-home husband.

Academy attorneys say that if you are facing a custody dispute:

• Make every effort to work out a mutually acceptable custody arrangement on your own. Mutually agreed upon arrangements work better than court-ordered ones.
• If this can't be done, strongly consider mediation, arbitration and other ADS methods to prevent litigation and its deleterious effects on children.
• Don't seek custody for the wrong reasons. These include:
  • To extract a better financial settlement
  • To punish your spouse
  • To alleviate your guilt about divorce
  • To prove your worth to world
    • Don't denigrate the other spouse. Children are part mommy and part daddy and need both parents in their lives.
    • Seek counseling where appropriate.

Divorcing parents can also obtain copies of a free booklet, "Stepping Back from Anger: Protecting Your Children During Divorce," from the Academy by calling 1-877-4-THE-KIDS.

The American Academy of Matrimonial Lawyers is composed of the nation's top 1,500 attorneys who are experts in the field of matrimonial law, including divorce, prenuptial agreements, legal separation, annulment, custody, property valuation, support, and the rights of unmarried cohabitors.

The purpose of the Academy is to encourage the study, improve the practice, elevate the standards and advance the cause of matrimonial law.

Contact: Jonathan Dedmon of The Dilenschneider Group, 312-553-0700, for American Academy of Matrimonial Lawyers.