AFCC-­CA: The Big Tent for Discussing Conflicts about Child Custody

Some feel the Family Law system in the U.S. is broken.  Fixing it is hampered not just by limited financial resources for the courts, but also by conflict about policies, laws and procedures.  Especially in California, because of the size of the population and court system, any type of reform can seem daunting if not hopeless.  We have had attempts such as Family Law 2000 and the Elkins Commission.  Still, there are many  who have ideas and energy and believe we can do better.  To take any step, we must face the conflict of different ideas and interest.  I believe AFCC should serve as a big tent for ways to resolve conflict, both within individual families and among the various professional and advocacy groups that are associated with Family Law custody disputes.  The 201  AFCC-­CA Conference brings together some of the nations leading minds on new models for Family Law and will tackle some of these conflicts.

The birth of AFCC in the 1970s sprang from the effort to resolve conflict between separating parents in a more sensitive way than contentious litigation.  In California we pioneered mandatory mediation of custody disputes through communicating and identifying problems to solve together.  The research on custody mediation shows it is possible for even very hurt and angry people with opposing views to come up with solutions that can work for children.  Leading figures in AFCC‐CA also helped develop neutral custody evaluations and Parenting Plan Coordination followed to aid in resolving custody conflicts when mediation did not resolve it.  Even with these efforts, there has possibly been an increase in custody litigation over the years.

The conflicts between divorcing couples can get acted out among the professional system working with them.  Australian legal scholar and mediator John Wade writes in the October 2014 Family Court Review about unintended consequences of new interventions and family court reforms and how consumer complaints, media sensationalism and the internet have contributed to increasing factions with passionate positions about Family Law issues.  The success of mediation for divorcing couples can teach us something.  Respectful communication and acknowledging each side’s point of view is vital for getting the various factions concerned about Family Law to work together to improve how families are served in our court system.

By serving as a meeting ground for discourse about highly conflicted views held by researchers, and professional and advocacy groups, AFCC-­CA conferences do more than provide continuing education credits.  They foster the respectful communication that can address the big social problems encountered by families going through separation and divorce.  At its most basic, divorce is ground zero for gender wars.  There has been conflict about research findings over parenting and importance to children of fathers and mothers, especially for babies and very young children.  Joan Kelly gave the last presentation of her distinguished career on the very sensitive topic at the 2014 AFCC-­CA conference.  We have dealt with the struggle to find common ground for discussion of domestic violence and custody issues in our conferences.  This year we address the conflict about the fundamental issue of whether family disputes over children should be resolved through litigation model with the same standards of civil litigation or some alternative process.

Probably nothing has more contentious than efforts to address different points of view about physical and legal custody of children when there has been domestic violence in a family.  Take, for example, the 2007 Wingspread Conference, when the National Council of Juvenile and Family Court Judges and AFCC brought together a working group of thirty-­seven experienced practitioners and researchers to identify and explore conceptual and practical tensions that have hampered effective work with families in which domestic violence has been identified or alleged.  This led to Janet Johnston and Peter Jaffe presenting together at an AFCC‐CA conference on a conceptual framework they could jointly endorse for physical and legal custody plans when there has been domestic violence.  AFCC is following through on that work with a task force on Guidelines for Evaluators Examining the Effects of Intimate Partner Violence on Families: A Supplement to the Model Standards of Practice for Child Custody Evaluation.  Several members of that Task Force spoke at the 2015 AFCC-­CA conference, demonstrating how they brought together custody evaluators, researchers, victims advocates, attorneys representing parents, judges, and others on this task.  The product that this diverse group has produced has the potential of moving the field forward.

In the 2016 AFCC‐CA conference we bring together nationally known speakers who address a continuing, underlying conflict in Family Law about whether the resolution of custody disputes should be through the traditional legal process using litigation or whether hybrid or alternative dispute resolution processes should be used.  Increasing costs, budget cuts, and public dissatisfaction with the current system demand that we face this difficult issue.  Professional identities and ethics of attorneys, mental health professionals and mediators are challenged when questioning a system many have invested years of their lives in.  It probably takes someone of the stature of Rebecca Kourlis, a former Colorado Supreme Court Justice and head of the Institute for the Advancement of the American Legal System to ask the hard questions about whether our current system serves separating families.

Barbara Babb, one of the best-­known legal scholars on Family Law court processes challenges the model of traditional adversary process for divorce by advocating “Therapeutic Jurisprudence.”  Marsha Klein Pruett will present on an out of court dispute resolution model, which calls attention to whether cases should be resolved in public or private models.

In California, we have conflicts large and small about ways to provide more efficient and accessible resolution to custody disputes while also taking into account parents’ right to privacy and advocacy.  California has led the way in trying to make custody evaluations neutral and objective, but that effort may have led to evaluations also becoming too time consuming and expensive for most of the population.  With the increasing use of 733 experts to critique evaluations, there often is intense litigation over the evaluation itself resulting in a battle of experts for cases in which there is money to fuel it.  In our 2015 conference, judicial officers speaking at a plenary discussed how custody evaluations have become too costly and time consuming.  Some judicial officers say that they have stopped ordering evaluations because of the cost and prolonged litigation following them.  Judicial officers call for ways to get neutral, behavioral information about a family which can help their decisions, yet the mandate of Family Court Services is to provide mediation, not evaluation, services.

There is continuing conflict in California over whether we should have confidential mediation or Child Custody Recommending Counselors who provide information to the judge.  There are passionate positions on each side of the argument.  Many argue that protecting the confidentiality of mediation is central to its effectiveness.  There is also criticism of using CCRCs from both legal and mental health experts.  Input from a Child Custody Recommending Counselor is not held up to the exacting standards of custody evaluations.  Future AFCC‐CA conferences should tackle the thorny issues about getting information to judicial officers in a timely, cost-­effective manner while also protecting confidentiality and the civil rights of the parents and the best interests of children.

Those of us who attend the 2016 AFCC-­CA conference will hopefully find something in the discourse to move the field forward in California.  AFCC-­CA, as an independent, non-­profit organization, is a voice outside of the public court system with no official power or authority to implement change, but we have the power of ideas, which is a first step.  Through our conferences we bring to California not only the most creative thinkers in Family Law, but also the big tent for speaking and listening respectfully to each other and working together to make the Family Law system better for the separating families who need our help.