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Antiquated routines in custody disputes ignore best interest of children

April 29, 2003

Every year about 6,000 children experience their parents disputing who is to get custody of them in the courts. In a new dissertation, law sociologist Annika Rejmer at Lund University in Sweden, shows that custody disputes do not usually consider the best interests of the child. Moreover, she has developed an alternative model to resolve disputes in a better way.

In Sweden more than 30,000 couples separate each year. Together, these parents have about 55,000 children. Most parents succeed in resolving the issues surrounding their children's custody, domicile, and visiting rights on their own, but some ten percent turn to the courts for help.

In the court session, both parents have their say, but when it comes to bringing forth the best interest of the child, the process does not work as well. In her studies, Annika Rejmer has found that social workers and legal representatives think it is difficult to guarantee both the rights of parents and the best interest of the child. Furthermore, they feel that the concept of what is best for the child is insufficiently defined. In principle, court routines in custody battles have been the same since the early 20th century. This means that neither the child's perspective required by the UN Convention on the Rights of Children nor the best interests of the individual child are taken into consideration, according to Annika Rejmer. Instead the court predicates its thinking on the general needs of children.

Today's legislation assumes that anyone can wind up in a custody dispute and that this is an isolated phenomenon. "It's unfortunate that it has not previously been established what parents wind up in custody battles," says Annika Rejmer. Her research shows that parents that need the help of a court in resolving issues about the custody of children are often both socially and economically vulnerable. The conflict about custody is usually the culmination of a series of other conflicts and crises.

According to child psychologists, the basic precondition for cooperation is that the parents feel respect and trust for each other in their role as parent. When the court awards joint custody, they often pay no attention to the practical capacity the parents have to look after a child jointly. "Parents who cannot cooperate should not have joint custody, since long and drawn-out conflicts can damage the child," says Annika Rejmer.

Annika Rejmer has several suggestions as to how custody disputes can be resolved to the advantage of children. One way is to develop the cooperative dialogues at the social office to deal with conflicts and crises. Since the court commands greater authority than the social authorities, Annika Rejmer proposes that the court procedure be initiated by mandatory cooperative dialogues as a first step. These dialogues should also include private sessions where parents can receive personal support. In these private sessions it should also be possible to determine what type of conflict the parents have--a conflict of interests or a conflict of values. A conflict of interests can deal with how the parents are to share custody. A value conflict, on the other hand, when one of the parents thinks that the other is unsuitable as a parent, for instance, must normally be resolved in court. What is best for the child should be investigated by specially trained staff at the social authorities who pay special attention to how the parents' conflict is impacting the child.

Today the courts assume that joint custody is best. Annika Rejmer maintains that this is the wrong point of departure in cases of value conflicts. Instead, the court should unconditionally assess what is best for the child and focus more on the parents' actual ability to cooperate.

Together with Anna Singer, a university lecturer in civil law at Uppsala University, and journalist Gert Svensson, Annika Rejmer has arrived at a radical proposal regarding how society should deal with custody disputes. Among other things, they suggest that each municipality should establish a special office, the Office for the Interests of Children, to which families and others could turn if a family situation is not viable.

Vetenskapsrådet (The Swedish Research Council)