Effects Divorce-2

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 1

Anna L. Davis, Susan P. Leviton and Jana B. Singer

August, 1997

Published by

The Abell Foundation

111 S. Calvert Street

Suite 2300

Baltimore, Maryland 21202

MITIGATING THE EFFECTS OF

DIVORCE ON CHILDREN THROUGH

FAMILY-FOCUSED COURT REFORM

2 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

This paper was prepared for the Abell Foundation pursuant to a grant to the Children’s and Family Law Program at the University of

Maryland School of Law. The authors are grateful to the Foundation for its generous support. We also wish to thank Tonya Allen, Jordan

Frame, Tracy Jensen, Jacqueline Levasseur, Sara Moghadam, Christine Morse and Jennifer Nemec for their valuable research assistance.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 3

Table of Contents

EXECUTIVE SUMMARY ........................................................................................ i

SECTION I: THE PROBLEM .............................................................. 1

SECTION II: THE EFFECTS OF DIVORCE ON CHILDREN........ 3

A. Summary of Social Science Research .......................... 3

B. Variables Affecting Divorce Outcomes for Children.... 4

C. Conclusions................................................................... 7

SECTION III: INTERVENTIONS........................................................... 9

A. Parent Education Programs .......................................... 9

B. Mediation .................................................................... 16

C. Support Groups for Children ...................................... 21

D. Parenting Plans ........................................................... 28

SECTION IV: INITIATIVES FOR A UNIFIED FAMILY

COURT IN MARYLAND.............................................. 31

SECTION V: CONCLUSIONS AND RECOMMENDATIONS........ 33

FOOTNOTES ................................................................. 37

Mitigating The Effects Of Divorce on Children Through Family-Focused Court Reform

4 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 1

Executive Summary

ore than 1.2 million American children experience the divorce or separation

of their parents each year. Although divorce rates in the United States have

declined slightly from their peak in the early 1980's, the divorce rate today

is more than double what it was in 1960. A growing body of social science evidence

suggests that divorce poses significant and long-lasting risks for children. These risks

include emotional and behavioral problems, lower academic achievement, social diffi-

culties, lower job status, lower marital satisfaction, and a heightened risk that their own

marriages will end in divorce.

At the same time the social science evidence indicates that the detrimental effects

of divorce on children are neither inevitable nor irreparable. Indeed, research is accu-

mulating that indicates that a combination of responsible parenting, a sensitive and

family-focused court system, and strong community-and school-based support pro-

grams can significantly help children and parents successfully cope with the difficul-

ties and transitions that accompany divorce. While much additional research is needed,

the social science evidence is beginning to point the way toward promising judicial and

policy reforms.

This report examines and evaluates a number of court-connected initiatives that

have been designed and implemented across the country to reduce the negative effects

of divorce on children. The paper begins by summarizing the social science research

regarding the effects of divorce on children. This summary highlights several aspects

of divorce that social scientists have identified as particularly harmful to children. These

include high levels of parental conflict, financial instability and economic hardship,

deficits in parenting time and attention, and the loss of a relationship with the non-

residential parent. This analysis suggests that strategies that seek to mitigate the harm-

ful effects of divorce on children should focus on ameliorating these phenomena. The

paper then examines four specific types of divorce-related interventions: parenting

education programs, family mediation, support groups for children of divorce, and

parenting plan legislation. We describe the goals and content of these interventions and

discuss the evidence currently available to assess the effectiveness of each interven-

tion. The final section of the paper discusses the pilot program recently launched by

the Baltimore City Circuit Court to create a Family Division within its civil docket for

domestic cases. The paper concludes by recommending comprehensive family-focused

judicial and policy reforms for Maryland.

Mitigating The Effects Of Divorce on Children Through Family-Focused Court Reform i

A growing body of social

science evidence

suggests that divorce

poses significant and

long-lasting risks for

children.

2 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 3

Section I: The Problem

Demographers estimate

that, if current divorce

rates hold steady, nearly

half of all children born in

the United States today

will experience the

divorce or separation of

their parents.

ore than 1.2 million American children experience the divorce or separation

of their parents each year.

Although divorce rates in the United States

have declined slightly from their peak in the early 1980's, the divorce rate

today is more than double what it was in 1960.

Approximately half of all first mar-

riages end in divorce and the dissolution rate for remarriages is even higher. Demogra-

phers estimate that, if current divorce rates hold steady, nearly half of all children born

in the United States today will experience the divorce or separation of their parents.

There is a growing consensus among social scientists that divorce poses significant

and long-lasting risks for children. Research suggests that, on average, children who

grow up in divorced families are more likely to experience emotional and behavioral

problems than children who live in continuously intact marital families.

Children who

experience their parents' divorce are also more likely to have children while teenagers,

to cohabit, and to conceive and bear children outside of marriage than their counter-

parts from non-divorced families.

Moreover, although most children adjust success-

fully to their parents' separation and divorce, a minority experience prolonged sadness

and depression.

Clinical studies also suggest that a significant number of these chil-

dren have difficulty forming long-term relationships and attachments with members of

the opposite sex.

At the same time, the social science evidence suggests that the detrimental effects

of divorce on children are neither inevitable nor irreparable. Indeed, research is accu-

mulating that indicates that a combination of responsible parenting, a sensitive and

family-focused court system, and strong community and school-based support pro-

grams can significantly help children and parents deal successfully with divorce-re-

lated transitions and problems. While additional research is needed, this social science

evidence is beginning to point the way toward promising judicial and policy reforms.

This paper contributes to the reform effort by examining and evaluating a number of

court-connected programs that have been designed and implemented across the coun-

try to reduce the negative effects of divorce on children. The paper begins by summa-

rizing the relevant social science evidence regarding the effects of divorce on children.

The summary focuses not just on whether divorce affects children, but how and to what

extent; we therefore highlight those aspects of divorce that social scientists have iden-

tified as most important in predicting – and in ameliorating – divorce outcomes for

children. The paper then turns to divorce-related interventions. It examines the con-

tent and effectiveness of four specific types of interventions: parent education pro-

grams, court-connected divorce and custody mediation, school-and community-based

support groups for children, and parenting plan requirements. This section of the paper

also describes the comprehensive pilot program recently launched by the Family Divi-

sion of the Baltimore City Circuit Court. The final section of the paper uses this analy-

sis to suggest family-focused policy and court reforms for Maryland's judicial system.

This paper contributes to

the reform effort by

examining and evaluating

a number of court-

connected programs that

have been designed and

implemented across the

country to reduce the

negative effects of

divorce on children

4 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 5

Section II: The Effects of Divorce

on Children

The effect of the parents'

divorce is played and

replayed throughout the

first three decades of the

children's lives.

A. Summary of Social Science Research

A growing body of social science research supports the view that parental divorce

in childhood has an overall negative impact on important aspects of a child's develop-

ment. Children from divorced families, on average, experience more problems and

have a lower level of well-being than do children in continuously intact two-parent

families.

These problems include lower academic achievement, more behavioral prob-

lems, more negative self-concepts, more social difficulties, and more problematic rela-

tionships with both mothers and fathers.

Children from divorced families are also more

likely to drop out of school and generally acquire less education than children raised by

married parents.

Social scientists also agree that the negative consequences of divorce often persist

into adolescence and adulthood. A recent meta-analysis of 37 studies that examined

adult children of divorce revealed that, compared to those raised in intact two-parent

families, adults who had experienced a parental divorce had lower psychological well-

being, more behavioral problems, less education, lower job status, a lower standard of

living, lower marital satisfaction and a heightened risk of divorce.

Recent clinical

studies confirm the long-term impact of divorce. The most recent findings by psy-

chologist and researcher Judith Wallerstein indicate that children of divorce continue to

experience the emotional effects of their parents' break-up even as they mature into

their late twenties and early thirties.

Similarly, University of Virginia psychologist

Robert Emery notes that "children frequently express disappointment, longing, and

resentment about the divorce even years later, and their relationships with their parents

are likely to be strained."

These findings contradict the rosy view previously held by

some researchers (and divorcing parents) that children adapt readily to divorce and

show no lingering negative consequences.

Rather, as Dr. Wallerstein notes: "Unlike

the adult experience, the child's suffering does not reach its peak at the breakup and

then level off. The effect of the parents' divorce is played and replayed throughout the

first three decades of the children's lives."

In interpreting this social science data, several cautions are in order. First, the

average differences between children from divorced and non-divorced families are small,

rather than large.

The more sophisticated the study and analysis, the weaker the effect

of divorce.

This suggests "that divorce is not as severe a stressor for children as are

other things that can go wrong during childhood."

Second, although children of di-

vorce differ, on average, from children in continuously intact two parent families, there

is a great deal of overlap between the two groups.

Indeed, Dr. Emery notes that while

the "popular media frequently report sweeping, adverse effects of divorce on children's

mental health. . . research consistently points to children's resilience."

According to

Emery, "[s]tudies reveal only small differences in the psychological adjustment of chil-

dren whose parents are married or divorced; children seem to cope with divorce despite

substantial changes in their family life."

Similarly, noted divorce researcher Joan Kelly

…divorce is not as severe

a stressor for children as

are other things that can

go wrong during

childhood.

6 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

emphasizes that "the majority of divorced children, when assessed in the years after

divorce, are functioning within normal or average limits. They are not, as a group,

'disturbed,' although media reports leave the casual reader with that impression."

In addition, recent reports from several large longitudinal studies suggest that many

of the difficulties observed in children of divorce were present prior to parental separation

and may be linked to parental conflict during marriage. A 1990 study by Wallerstein and

her colleagues, for example, found that the pre-separation variables of marital conflict,

child's history of psychological problems and child's relationship with mother were more

important predictors of children's adjustment to divorce than were the post-separation

variable of conflict, loss of parent and change.

Research also indicates that children's

adjustment to divorce varies significantly by age and gender, and possibly by race and

ethnicity as well.

Indeed, the dearth of research on how divorce affects non-white chil-

dren has been identified as a serious shortcoming in the social science literature.

The existing research on children's adjustment to divorce is also subject to signifi-

cant methodological limitations. Critics of Judith Wallerstein, for example, argue that

while her on going study of divorced families provides valuable clinical insights, the

research is flawed scientifically because it does not include a comparison group of

children from non-divorced families and because her sample consists solely of families

who sought psychological counseling.

Larger, survey-based studies may be more

methodologically rigorous than clinical studies in terms of sampling techniques, but

they tend to rely heavily on retrospective reports from parents and do not generally

examine children's development over time.

Finally, it may be significant that older

studies tended to yield larger differences between children from divorced and non-

divorced families than do studies carried out more recently.

This finding suggests

that, as divorce has become more common and less stigmatized, and as support pro-

grams for children have been expanded, the detrimental effects of divorce on children

may have become less severe.

B. Variables Affecting Divorce Outcomes for Children

In addition to asking simply whether divorce harms children, researchers have be-

gun to focus more specifically on how and why divorce has such a significant impact.

Although this work is ongoing, researchers have identified a number of variables that

seem particularly important in predicting divorce outcomes for children. We discuss

those variables briefly below.

1. Parental Conflict

Virtually all researchers agree that the conflict so often associated with divorce has

a particularly detrimental effect on children. "Conflict between parents is a consistent

predictor of increased psychological difficulties among children from divorced – and

married – families. Numerous experimental and field studies point to the detrimental

Research indicates that

children's adjustment to

divorce varies

significantly by age and

gender, and possibly by

race and ethnicity as well.

Virtually all researchers

agree that the conflict so

often associated with

divorce has a particularly

detrimental effect on

children.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 7

role of parental conflict, particularly conflict that is extended, open, angry, unresolved,

and involves the child."

Children who are exposed to physical aggression between

parents are particularly at risk for behavioral and emotional difficulties.

These chil-

dren are also more likely to adopt defensive behaviors, to be more aggressive, and to

exhibit signs of clinical depression.

Several studies have shown that interparental conflict may also be responsible for

higher levels of anxiousness and poor school performance among children of divorce.

This is especially so in families in which the levels of conflict remain high after the

divorce. By contrast, where parental conflict is low, researchers have found little dif-

ference between children from intact and divorced families.

Indeed, at least one study

has found that children in low-conflict divorced families were better adjusted than chil-

dren in high-conflict married families.

Studies also suggest that the detrimental ef-

fects of parental conflict can be ameliorated when parents avoid placing children "in

the middle" of their disagreements, when parents avoid direct, aggressive expressions

of their conflict in front of their children, and when parents use compromise styles of

conflict resolution.

Conflict between spouses also tends to erode a divorcing couple's capacity to co-

operate in the care and guidance of their children. As a consequences of this inability

to cooperate, combined with the parents' lack of respect for one another, parenting

becomes problematic: expectations are inconsistent and discipline is more coercive,

all of which are predictive of more negative and distant parent-child relationships and

an increase in children's emotional and behavioral problems.

Continued high conflict

after divorce may further interfere with parents' ability to nurture and be responsive to

their children's needs, as well as to discipline their children effectively, which may

exacerbate existing behavior problems or create new problems for children.

2. Economic Hardship

A second important source of children's post-divorce difficulty is the economic

hardship often experienced by children and their primary caretaker -- usually the mother

-- after separation and divorce. Research shows that most families become financially

worse off as a result of divorce, as the income that previously supported a single house-

hold unit now must be stretched between two. Custodial parents, generally mothers,

are particularly hard hit.

Divorce-related economic hardship affects many aspects of the children's well being.

Financial hardship may make it difficult for a custodial parent to provide books, home

computers and other resources that can facilitate children's academic attainment.

More-

over, economically pressed custodial parents are often forced to vacate the marital home

and move to a lower income neighborhood, with concomitant drops in the quality of

schools and child care. As a result of such a move, children may lose touch with friends

and neighbors who might otherwise provide support and stability.

Economic hardship

also negatively affects children through its impact on the children's primary caretaker.

Several studies have

shown that interparental

conflict may also be

responsible for higher

levels of anxiousness

and poor school

performance among

children of divorce.

Divorce-related economic

hardship affects many

aspects of the children's

well being.

8 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

Income pressures often force a custodial parent to return to work after a significant ab-

sence, or to work longer hours than before, thus reducing the time and energy that parent

has available to meet the children's enhanced needs. Moreover, the stress created by

these financial worries often takes a psychological toll on the custodial parent, further

interfering with her ability to parent effectively and responsively.

Studies indicate that these economic factors are responsible for a significant por-

tion of the negative impact of divorce on children. Indeed, one early study found that

many of the differences between children from divorced and non-divorced families

disappeared when family income was taken into account.

A more recent comprehen-

sive comparison of children who grow up in single parent vs. two parent families con-

cludes that income differentials account for at least half of the differences in achieve-

ment and well-being between these two groups.

Diminished academic performance,

in particular, appears to be closely linked to post-divorce economic hardship.

3. Adjustment of the Custodial Parent

The psychological adjustment and well-being of the custodial parent is emerging

as a central factor in determining children's adjustment to divorce.

Some research

suggests that, during the first year of separation, custodial parents tend to be less affec-

tionate toward their children, supervise them less well, and to be less consistent in

dispensing discipline.

These disruptions in effective parenting pose significant risks

for children. By contrast, parents who maintain a positive and consistent relationship

with their children are often able to ameliorate many of the negative effects of di-

vorce.

Research also consistently shows that children do better after divorce when

their custodial parent is in good mental health, displays good child rearing skills, and

has access to ample social support.

Studies have also found that the quality of the relationship between children and

their custodial parent is among the strongest predictors of child well-being after di-

vorce. Indeed, one well-known study found that the quality of the mother-child rela-

tionship was more important than any other factor examined, including both inter-pa-

rental conflict and paternal involvement in the child's life.

This study suggests that

family relationship factors may be more important than external environmental changes

in determining children's adjustment to divorce.

4. Relationship with Non-custodial Parent

Some divorce researchers maintain that the loss of one parent through divorce is

central to the decline in well-being experienced by many children. Divorce typically

results in the departure of one parent -- usually the father -- from the child's household.

For many families, the quality and quantity of contact between the child and the non-

residential parent decreases markedly over time.

A number of studies have examined

the significance of the children's relationship with the non-residential parent as a deter-

minant of post-divorce well-being. The results of these studies are mixed.

family relationship

factors may be more

important than external

environmental changes in

determining children's

adjustment to divorce.

A more recent

comprehensive

comparison of children

who grow up in single

parent vs. two parent

families concludes that

income differentials

account for at least half

of the differences in

achievement and well-

being between these two

groups.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 9

According to one view, "divorce affects children negatively to the extent that it

results in a loss of time, assistance and affection provided by the noncustodial par-

ent."

Mothers and fathers are both considered important resources for children, and

the departure of one of these resources is thought to deprive children of practical assis-

tance, emotional support, guidance and supervision.

A number of early studies sup-

port this view; these studies found small, but significant correlations between predict-

able and frequent paternal contact and children's adjustment after divorce, unless the

father himself was poorly adjusted or extremely immature.

The positive relationship

between paternal contact and child well-being was strongest when the custodial mother

approved of the father's continuing contact with the child and rated the relationship

positively.

Research also indicates that a majority of children describe the loss of

contact with a parent as the primary negative aspect of divorce for them.

Finally,

proponents of this view point out that the degree of involvement of the non-residential

parent is strongly related to the reliability of child support payments, thus implicating

the child's economic well-being.

Other research questions the importance of the relationship with the non-residen-

tial parent in predicting or enhancing children's post-divorce well-being.

This research

indicates that the psychological adjustment of the residential parent, and the extent of

conflict during the marriage and after divorce, are more profound influences on children's

adjustment than the extent of contact with a non-residential parent.

Moreover, several

studies indicate that where inter-parental conflict is high, continued contact with the

non-residential parent may be contrary to children's well being, particularly where that

contact exacerbates or exposes the child to continuing conflict between the parents.

Overall, the research suggests that the impact of the child's relationship with the

non-custodial parent is not unidimensional, nor is it always beneficial. Rather, the

desirability of such contact "must be seen in relationship to the child's age and sex, the

closeness of the father-child relationship prior to divorce, marital conflict, maternal

and paternal adjustment and mother's hostility after separation."

C. Conclusions

The question remains: What conclusions can be drawn from this body of social

science data? For us, several things stand out. First, for children, divorce is not a

discrete legal event, but rather an ongoing psychological and emotional process that

continues to impact children's lives long after the formal dissolution of their parents'

marriage. Second, although children of divorce fare worse, on average, than children

from non-divorced families on a variety of outcome measures, these average differ-

ences are small, and they may be getting smaller. Thus, contrary to the calamitous

picture sometimes painted in the popular media, most children of divorce function suc-

cessfully -- both as children and as adults -- although a minority do not.

Finally, the detrimental effects of divorce on children appear to be causally linked

Research also indicates

that a majority of children

describe the loss of

contact with a parent as

the primary negative

aspect of divorce for

them.

Contrary to the

calamitous picture

sometimes painted in the

popular media, most

children of divorce

function successfully --

both as children and as

adults -- although a

minority do not.

10 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

to specific aspects of our current divorce regime. These aspects include high levels of

interparental conflict, a significant decline in the economic well-being of children and

their primary caretakers, and deficits in post-divorce parenting skills and relationships.

These correlations, in turn, suggest that the harmful effects of divorce can be amelio-

rated by judicial and policy reforms that seek to reduce conflict, enhance post-divorce

economic security and improve the ability of mothers and fathers to parent effectively

and cooperatively after divorce. It is to these interventions that we now turn.

Correlations suggest that

the harmful effects of

divorce can be

ameliorated by judicial

and policy reforms that

seek to reduce conflict,

enhance post-divorce

economic security and

improve the ability of

mothers and fathers to

parent effectively and

cooperatively after

divorce.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 11

hile divorce is a process, it is also a legal proceeding. Under the fault-

based divorce system, the primary purpose of that proceeding was to as-

sign blame for the breakdown of a marriage and to dispense justice accord-

ingly. The adversarial structure that has traditionally characterized our legal system

was relatively well suited for these tasks. With the advent of no-fault divorce, however,

courts have become less concerned with assigning blame and more concerned with

helping divorcing couples -- particularly parents -- resolve their disputes and restruc-

ture their financial and parenting relationship as equitably and efficiently as possible.

Consistent with this shift in focus, the traditional adversary model of justice has ex-

panded in recent years to include social and educational programs, as well as alterna-

tive dispute resolution procedures, as supplements to -- or substitutes for -- a judicial

remedy. Moreover, there is a growing recognition among some courts and child advo-

cates that no amount of judicial intervention will protect children's well being after

divorce unless the legal system itself becomes less adversarial and more conducive to

promoting cooperative post-divorce parenting, both substantively and procedurally.

This recognition has led to the development of a variety of court-connected and

community-based intervention programs designed to reduce the negative impact of

parental divorce and separation on children. These interventions include parent educa-

tion programs, divorce and custody mediation, interdisciplinary support groups for chil-

dren, and parenting plan requirements. This section of the paper describes these four

types of interventions and discusses their effectiveness, in light of the available studies

and information.

A. Parent Education Programs

Courts in more than 40 states have implemented parent education programs de-

signed to help divorcing parents ease the trauma of separation and divorce for them-

selves and their children. According to a recent survey, over 500 such education pro-

grams currently exist in the United States.

Parent education programs typically have

several goals: first, to provide parents with information about the effects of divorce

and separation on children; second, to reduce divorce-related parental conflict by im-

proving parents' ability to communicate with each other about their children; and third,

to provide parents with skills and techniques that will enable them to parent more effec-

tively and cooperatively after divorce or separation.

These programs encourage di-

vorcing parents to focus on the needs and concerns of their children and to modify their

behavior accordingly. Parent education programs also aim to minimize the long-term

emotional, social, and academic problems experienced by children of divorce.

The curriculum of most parent education programs includes information about

children’s needs and reactions to divorce at various states of development and post-

divorce adjustment.

Due to the rapid proliferation of these classes, programming ideas

are readily available from a variety of sources including family law journals, psycho-

Section III: Interventions

there is a growing

recognition among some

courts and child

advocates that no

amount of judicial

intervention will protect

children's well being after

divorce unless the legal

system itself becomes

less adversarial and more

conducive to promoting

cooperative post-divorce

parenting, both

substantively and

procedurally.

12 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

logical journals, conference papers and workshops, courts, and private mental health

agencies.

The format of the existing programs varies widely and runs the gamut from

informal programs run out of a provider's home to highly formalized statewide initia-

tives.

The question of whether parent education programs should be mandatory has en-

gendered considerable debate. Proponents of mandatory programs argue that com-

pelled attendance will significantly reduce the litigation and mental health care costs

often associated with divorce.

Compelled attendance also ensures that both parents

receive the same information and, in theory, are better able to identify shared parenting

concerns.

These shared concerns may then lead to agreements between warring par-

ents, thereby alleviating the need for expensive litigation.

Advocates of mandatory

attendance also argue that divorcing parents may not have the initiative to seek out the

education on their own.

Mandatory attendance also precludes former spouses from

using participation in a class as a weapon against the other in a custody battle.

Finally,

some commentators have suggested that mandating divorce-related parent education

makes an important political and moral statement regarding the welfare of children

impacted by divorce.

Opponents of mandatory attendance counter that parents who are compelled to

attend the programs are unlikely to be receptive to the information presented and are

likely to resent the state’s intrusion on their time.

Opponents also point to the diffi-

culty of enforcing a mandatory attendance requirement and to the delays that such a

mandate may engender -- delays which may themselves be contrary to children’s inter-

ests.

Whatever the merit of these arguments, the trend appears to favor mandatory pro-

grams.

As of September 1994, almost 400 jurisdictions from 35 states had some type

of formal mandate.

In some jurisdictions, state wide legislation or local court rules

require all divorcing parents to attend classes; in others, judges are permitted to man-

date attendance in particular cases. In 1997, Maryland endorsed the latter approach.

The Maryland parenting education statute permits -- but does not require -- judges to

order divorcing parents to attend a parenting seminar. Specifically, the statute provides

that “[p]rior to granting a decree of divorce, the court may require all parties to partici-

pate in an educational seminar that is designed to educate parents about the effects, and

to minimize the disruption of a divorce on the lives of children.”

The statute also

directs the Court of Appeals to adopt rules governing the content of the seminar and to

establish criteria for exemption from the seminar requirement. Interestingly, the statute

provides that a court may not exempt the parties from attending the parenting seminar

if there is any evidence of domestic violence or of child abuse or neglect, but it cautions

that divorcing parties may not be compelled to attend the seminar together. The Court

of Appeals is currently drafting rules designed to implement the statute, which will

become effective on October 1, 1997.

Whether mandatory or voluntary, parent education programs, by themselves, are

The format of the existing

programs varies widely

and runs the gamut from

informal programs run

out of a provider's home

to highly formalized

statewide initiatives.

The trend appears to

favor mandatory

programs.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 13

not expected to cure all the ills associated with divorce. Nevertheless, legal and mental

health professionals are hopeful that such programs will lead to a decrease in the hostil-

ity and conflict that accompany so many divorces. Moreover, research suggests that

the earlier in the divorce process that parents understand the harm that a protracted

custody battle will do to them and their children, the more likely it is that parents will

minimize their conflict and resolve their disputes.

1. Description of Existing Programs

a. The P.E.A.C.E. Program. One of the premier parent education programs in

the country is the P.E.A.C.E. program based in New York. P.E.A.C.E. -- Parent Educa-

tion and Custody Effectiveness -- is a joint project of the Hofstra University School of

Law and the Hofstra University School of Education’s Graduate Program in Marriage

and Family Counseling.

The P.E.A.C.E. program operates in communities throughout

the state of New York on a pilot program basis.

Each program is organized by volun-

teer judges, attorneys, and mental health professionals who adapt the program to meet

the particular needs of their community.

In order to preserve some consistency, each

program is furnished with uniform training and curriculum materials.

Parent partici-

pants are referred to P.E.A.C.E. by judges, lawyers, and mental health professionals

and their participation is voluntary.

P.E.A.C.E. is an interdisciplinary educational program whose premise is that “when

parents understand the effects of divorce or separation on children, they are empow-

ered to make responsible decisions for them.”

Its curriculum consists of three topics,

each of which is taught in a separate class session. The first session focuses on how the

legal process resolves disputes over custody and child support when the parents are

unable to reach agreement.

This session is led by a judge or lawyer and includes a

description of the substantive standards that judges use to resolve contested custody

disputes.

The second session is led by a mental health professional and focuses on the

emotional aspects of divorce for parents.

The final session of P.E.A.C.E., also led by

a mental health professional, focuses on the ways that children experience divorce.

is designed to enhance parental understanding of their children’s perspectives and to

help parents guide their children through the transition of separation and divorce.

Participant reaction to the P.E.A.C.E. program has been overwhelmingly favor-

able.

An Interim Evaluation Report of the Erie County P.E.A.C.E. Program, prepared

by independent consultants, verified that participants viewed the experience favorably.

Of the 93 participants who responded, 80% stated that their knowledge about families

and divorce had increased as a result of the program and over 95% said they would use

what they learned.

When asked whether participation in the program should be man-

datory, 80% of the respondents (many of whom had to be strongly encouraged to at-

tend) felt that parents entering divorce or separation should be required by law to attend

P.E.A.C.E., and more than 90% stated that they would recommend P.E.A.C.E. to oth-

Research suggests that

the earlier in the divorce

process that parents

understand the harm that

a protracted custody

battle will do to them and

their children, the more

likely it is that parents

will minimize their

conflict and resolve their

disputes.

Participant reaction to the

P.E.A.C.E. program has

been overwhelmingly

favorable.

14 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

ers.

Respondents reported that information about shared custody, learning to focus on

the child’s best interest, learning to communicate, realizing the importance of coopera-

tion, information on the child’s experience of divorce, and guidelines for giving chil-

dren a normal life were the most helpful.

Completing anonymous questionnaires, par-

ticipants have reported such results as “[i]t is a sea of confusion, anger, and fear out

there. And most of us don’t know how to swim...For me, the P.E.A.C.E. Program was

the missing link.”

b. The Children of Separation and Divorce Center, Inc. Divorce Education

Seminars for Parents. The Children of Separation and Divorce Center, Inc. (COSD)

pioneered divorce education in Maryland more than six years ago. Since then, COSD

has conducted divorce education seminars for parents in Howard, Montgomery, and

Prince George’s Counties. COSD staff has also trained mental health professionals

across the nation and in 13 counties in Maryland. Those trained by COSD teach a

particular content and are licensed to use COSD materials, including written manuals

and videotapes of children and parents.

COSD’s parenting seminars are based on the Child and Family Focused Model of

Decision-Making, developed by COSD staff. This model considers children’s needs,

at each stage of their development, in four specific areas: self-esteem, interpersonal

functioning, intellectual functioning, and safety and security. The content of the parenting

seminars is derived from this model. COSD has articulated the following goals for its

Parenting Education Program:

(1) to empower parents with skills and knowledge to help them retain their deci-

sion-making power and help their children;

(2) to provide hope for the present and future that parents and children will expe-

rience a sense of family;

(3) to teach skills to assist parents to help them go on with their lives and provide

children with a healthy view of relationships;

(4) to help parents explain separation and divorce to their children;

(5) to reduce continuous litigation;

(6) to inform parents about community resources that go beyond divorce and ad-

dress problems such as substance abuse, spousal abuse and mental illness;

(7) to explain child development, infancy through young adulthood, and the im-

pact of divorce on each phase of development and what parents can do to help

their children;

This model considers

children’s needs, at each

stage of their

development, in four

specific areas: self-

esteem, interpersonal

functioning, intellectual

functioning, and safety

and security.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 15

(8) to present a non-adversarial process of divorce that will be beneficial to par-

ents and children presently and over time; and

(9) to prepare parents for active roles in the divorce process regardless of the method

they choose.

COSD’s six hour parenting seminars are taught by experienced mental health pro-

fessionals and generally include presentations by both adults and children who have

experienced divorce. Specific topics covered during the first session include the emo-

tional impact of divorce on parents and children, divorce-related changes in parent-

child relationships, how to explain divorce to children, and children’s needs and reac-

tions to divorce at various stages of child development. The second session focuses on

building responsible parenting skills and relationships. Seminar leaders and partici-

pants discuss how to build positive co-parenting relationships and how to develop con-

structive post-divorce parenting arrangements.

The Child and Family Focused Model is an empowering one for parents and pro-

fessionals. The model emphasizes that children have many needs and that both parents

have many strengths to contribute toward meeting those needs. In contrast to a custody

battle, with parents seeing themselves as winners or losers, the COSD model focuses

on meeting children’s multiple needs through responsible post-divorce parenting. The

seminars are prescriptive for parents because parents need to know their children very

well in significant areas of their development in order to determine what kind of parenting

is essential. The model is also designed to provide a sense of hope by offering specific

goals each parent can work towards to better meet their children’s needs.

Parents who participate in the COSD seminars complete detailed questionnaires

both before and after the six-hour program. Preliminary analysis of these question-

naires confirms that participation in the seminars enhances parental knowledge and

skills in several important areas of functioning. In particular, parents who participate in

the seminars significantly improve awareness and their ability to “keep the child out of

the middle” of divorce-related conflicts and disputes. Parents also report enhanced

ability to cope with divorce themselves and to help their children through divorce-

related transitions.

Women, in particular, appear consistently to gain confidence in

their ability to handle all aspects of the divorce, while men report an enhanced under-

standing of the impact and complexity of the divorce process.

c. The GRASP Program. In Johnson County, Kansas, divorcing families must

attend a two-hour program entitled “General Responsibilities as Separating Parents,”

or GRASP.

Offered weekly at the courthouse at a cost of $10,

attendance at GRASP

is required by local court rule and must be completed by every parent with a minor

child seeking a divorce.

GRASP teaches parents that there are emotional consequences

to their actions. It emphasizes that parents must protect their children from conflict.

In contrast to a custody

battle, with parents

seeing themselves as

winners or losers, the

COSD model focuses on

meeting children’s

multiple needs through

responsible post-divorce

parenting.

16 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

GRASP also reinforces the notion that even though the marriage bonds are broken, the

parental bond endures; the program emphasizes that the children will continue to have

an ongoing relationship with both parents.

100

GRASP proceeds from the premise that divorce is one of the most stressful events

a person can experience.

101

Indeed, the program compares the process of coping with

divorce with the model for experiencing grief, developed by Elizabeth Kubler-Ross.

102

In so doing, it teaches parents to shun manipulative behaviors and to strive to establish

a business like parenting partnership with their ex-spouses. It also presents some alter-

native dispute resolution techniques and includes some general information about the

legal process.

103

d. Helping Children Succeed After Divorce (HCSD). Another mandatory par-

ent education program is “Helping Children Succeed After Divorce” (HCSD) in Franklin

County, Ohio (which includes Columbus).

104

Developed through a partnership between

the Children’s Hospital Guidance Centers Divorce Services and the Franklin County

Court of Domestic Relations,

105

the program consists of one intensive, 2

-hour semi-

nar presented by two mental health professionals with expertise in divorce.

106

The seminar

covers four topics: (1) the adult experience of divorce; (2) the emotional and psycho-

logical impact of divorce on children; (3) the post-divorce parental relationship; and

(4) problem solving techniques.

107

The program assumes that parents will be more re-

ceptive to their children’s needs if their own emotional experience is understood and

acknowledged.

108

Parents are taught that divorce is a process that unfolds over time and

encompasses varying emotions.

109

The program analogizes the emotional, social, inti-

mate, and financial impact of divorce to the losses that one experiences when a loved

one dies.

110

The HCSD seminar also emphasizes the need for divorcing parents to rebuild their

relationship for the purpose of child rearing.

111

The psychological importance of both

parents in the life of a child is stressed throughout the seminar.

112

Recognizing that a

common effect of divorce on adults is the “diminished capacity to parent,”

113

HCSD

emphasizes that the adults’ ability to resume their parental functioning is a key factor in

their children’s adjustment to divorce.

114

Thus, a major theme of the seminar is the need

for divorced parents to reduce their anger and conflict and to protect children from

parental battles.

115

Parents are urged to adopt a “business-like co-parental” relationship

with their former spouse in order to parent effectively after divorce.

116

Participants in the HCSD program complete a questionnaire at the end of the semi-

nar. The questionnaire includes both open-ended questions and statements to which par-

ents are requested to rate their agreement or disagreement prior to receiving their certifi-

cate of attendance.

117

Over half (54%) of the participants reported that the seminar helped

them better understand their own feelings about divorce.

118

A majority of parents also

indicated a greater awareness of their children’s divorce experience. Most participants

reported that attending the seminar may affect the way they interact with their children

GRASP proceeds from

the premise that divorce

is one of the most

stressful events a person

can experience.

The HCSD seminar also

emphasizes the need for

divorcing parents to

rebuild their relationship

for the purpose of child

rearing.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 17

about divorce issues.

119

Similarly, two thirds reported that the seminar might make a

difference in how they interact with their former spouse around the children.

120

HCSD facilitators were concerned about whether parents would resent being re-

quired to attend and to what extent the resentment might interfere with their receptivity

to the program. Surprisingly, while 23% of the parents said they resented being re-

quired by the court to attend, most indicated that they would recommend the seminar to

others despite their initial resentment.

121

2. Program Evaluations

While the proliferation of parent education programs is viewed as encouraging,

evaluations of the effectiveness of these programs lag behind their inception. Thus far,

few methodologically rigorous studies have been performed to evaluate the content or

the results of these programs. Most studies that have been done rely on surveys distrib-

uted to parents immediately or only a few months after the completion of the program.

Even in mandatory programs, completion of these surveys is generally voluntary, so

the responses received may represent only the most enthusiastic of the parent partici-

pants. The accuracy of the conclusions drawn from these surveys with regard to the

program's ability to modify parental behavior is suspect because the subjects of the

experiment are themselves attempting to assess its effectiveness. Moreover, the avail-

able literature encompasses programs that are so varied in terms of their content, method

of instruction, and duration that it is difficult to determine the effectiveness of one

particular program trait over another. Thus, even if two parenting classes taught the

same skills, but varied in length and method of instruction, and one program was more

effective at modifying parental behavior, it would be difficult to determine which as-

pect of the effective program was responsible for the behavioral modification. In short,

more rigorous and objective forms of evaluation are necessary. These should focus on

both parental and child well-being, and should compare the post-divorce experiences

of families who have participated in parent education programs with the experiences of

families who have not. In addition, longitudinal studies are necessary to determine the

long term effects of these programs.

A 1997 study provides encouraging evidence of the success of one parent educa-

tion program in enhancing parents' problem solving skills and, specifically, reducing

relitigation rates. Two Ohio University professors evaluated Children In The Middle, a

two-hour mandatory education program sponsored by the court in Athens County,

Ohio.

122

The program focuses intensively on reducing the frequency with which par-

ents involve children in loyalty conflicts. It emphasizes making parents aware of these

practices and their effects through video scenes depicting the most common practices,

followed by training in more appropriate behavior. Small group discussion allows

parents to apply the material to themselves, and a workbook summarizing the class

content is given to parents upon completion of the course.

123

A 1997 study provides

encouraging evidence of

the success of one parent

education program in

enhancing parents.

18 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

The study of Children in the Middle compared 48 parents who completed the two-

hour program with a control group of 23 demographically matched parents who filed

for divorce the year prior to institution of the mandatory program. Parents in the study

group were interviewed by phone six months after participating in the class. Court

records were reviewed between 24 and 27 months after each participant completed the

class to ascertain whether any divorce or custody issues had been relitigated.

124

Researchers found a clear and significant difference between the treatment and

control groups in terms of the total relitigation rate. Over the 27 month study period,

parents who took the class averaged 1.51 court filings, while parents in the control

group averaged 3.74 filings.

125

Parents who attended the class were also assessed to

determine mastery and maintenance of skills taught during the program. Results dem-

onstrated a significant degree of skill mastery. Parents who attended the class scored

much higher in communication and problem solving skills than did parents in the com-

parison group.

126

Moreover, maintenance of these skills was highly related to reduced

relitigation; the better a parent's communication and problem solving skills, the less

likely that parent was to relitigate.

127

Significantly, researchers found that skill mastery

and behavioral change were not linked to parents' educational level. This is encourag-

ing because it suggests that parents of varying educational backgrounds can benefit

equally from attending divorce education classes.

128

Conclusion.Even supporters of parent education agree that parental education is

not a panacea.

129

It will not create cooperation from deeply embittered parents, nor will

it cure the psychological problems that may lie at the heart of some parental disputes.

130

Parent education programs can, however, provide information on more intensive, struc-

tured interventions and encourage participation in them.

131

In addition, preliminary

evidence suggests that parent education programs may be effective in teaching prob-

lem solving skills and in reducing relitigation rates.

132

Parent education may also be an

effective vehicle for directing divorcing families to less adversarial forms of dispute

resolution, diverting them from damaging custody battles.

133

Parent education programs

thus represent an important step toward the development of a family law system that

focuses on the needs of children.

134

B. Mediation

Another court-connected intervention designed, in part, to reduce the negative con-

sequences of divorce for children is divorce and custody mediation. Mediation is a pro-

cess in which a third party neutral (the mediator) encourages parties to reach a mutually

agreeable settlement of their dispute.

135

The mediator assists the parties "by helping them

to identify the issues, reduce misunderstandings, vent emotions, clarify priorities, find

points of agreement, explore new areas of compromise and possible solutions."

136

Mediation differs from arbitration in that the mediator is not empowered to resolve

the dispute or impose an outcome on the parties.

137

It differs from lawyer-conducted ne-

Parent education

programs can provide

information on more

intensive, structured

interventions and

encourage participation

in them.

131

In addition,

preliminary evidence

suggests that parent

education programs may

be effective in teaching

problem solving skills

and in reducing

relitigation rates.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 19

gotiation primarily in that the parties themselves conduct the discussions and attempt to

arrive at a satisfactory accord.

138

Mediation also differs from more traditional, adversarial

processes in that it seeks to move the parties from established positions to underlying

mutual interests, in order to generate value enhancing, or "win-win," solutions.

139

Mediation emphasizes cooperative decision-making. As such, it seeks to "reorient

the parties toward each other not by imposing rules on them, but by helping them to

achieve a new and shared perception of their relationship, a perception that will direct

their attention toward one another."

140

This cooperative orientation offers a number of

potential benefits for divorcing families. First, it encourages parents to focus on their

joint interest in promoting the well-being of their children. Mediation thus encourages

parents to "put their children first" during the often stressful process of divorce.

141

Mediation also gives parents the opportunity to develop communication and prob-

lem solving skills that can facilitate successful co-parenting after divorce.

142

Moreover,

if mediation is successful, divorcing parents can avoid the bitterness and emotional

trauma of a trial. Successful mediation also avoids the substantial litigation costs asso-

ciated with contested court proceedings, thus leaving more marital assets available to

meet the post-divorce needs of both the children and the former spouses.

143

Supporters of divorce and custody mediation contend that the process will enhance

the adjustment of children by promoting parental cooperation, reinforcing parent-child

bonds and encouraging the continued involvement of both parents in the lives of their

children after divorce.

144

Mediation may also reduce relitigation by producing custody

agreements that parents view as fair and acceptable over time.

145

Moreover, unlike

adversarial divorce procedures, mediation is designed to reduce conflict and to help

disputing parents resume a working relationship with each other.

146

1. Current Status of Divorce and Custody Mediation

Mediation has become a widely adopted method of resolving divorce and custody

disputes. In 1981, California became the first state to mandate mediation of all custody

and visitation disputes, prior to consideration of these issues by a court.

147

Other juris-

dictions have followed suit.

148

A February, 1997 article in the American Bar Associa-

tion Journal reported that, in more than half the states, courts are authorized by statute

to provide some form of mediation in divorce and custody cases.

149

A database main-

tained by the National Center for State Courts lists more than 200 court-connected

mediation programs in operation across the country, of which a substantial proportion

either mandate mediation categorically or permit judges to order mediation in particu-

lar cases.

150

Private, non-court-connected mediation of divorce and custody disputes

also flourishes across the country.

Court rules in Maryland authorize judges to require parties represented by counsel

in custody or visitation disputes to attend up to four mediation sessions.

151

Mediation is

limited to the issues of custody and visitation unless the parties and their counsel agree

Mediation thus

encourages parents to

"put their children first"

during the often stressful

process of divorce.

Private, non-court-

connected mediation of

divorce and custody

disputes is also

flourishes across the

country.

20 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

otherwise.

152

If counsel for a party or a child represents to the court in good faith that

there is a genuine issue of physical or sexual abuse of a party or child, and that media-

tion would therefore be inappropriate, the court may not order mediation. Parties who

are not represented by counsel may participate voluntarily in mediation, but may not be

ordered to mediate their disputes.

2. Research Effectiveness of Mediation

A significant amount of social science research has examined the results and effec-

tiveness of divorce mediation. That research has tended to substantiate some -- but not

all -- of the claims made by mediation proponents. Significantly, the research "is con-

sistent in reporting that neither parent nor child psychological adjustment is affected in

a statistically meaningful manner by either a custody mediation or comprehensive di-

vorce mediation process."

153

Most research on divorce mediation has examined the outcomes of mediation, as

opposed to the mediation process itself.

154

The vast majority of this outcome research

has focused on child custody mediation, as opposed to more comprehensive divorce

mediation, which encompasses financial as well as parenting issues.

155

Relatively few

studies have compared mediation processes or outcomes with their counterparts in the

adversarial system, particularly lawyer-conducted negotiation.

156

Other methodologi-

cal weaknesses in the research include client self-selection rather than random assign-

ment or comparison groups in most studies; a failure to assess clients' history of con-

flict and communication; considerable diversity in client groups, dispute settings and

legal rules; variations in the number and length of mediation sessions; and different

methods of data collection and analysis.

157

Despite these weaknesses, the studies’ re-

sults appear to converge on a number of outcome issues.

158

a. Conflict, Parental Cooperation, and Communication

In general, research in the United States and Canada has demonstrated small but

often short-lived increases in parental cooperation and improvement in communication

following divorce and custody mediation.

159

In a study that randomly assigned disput-

ing parents to custody mediation or custody litigation, parents who mediated reported

less conflict one year after settlement compared to those who litigated.

160

Nine years

later, the parents who mediated continued to communicate more about their children,

and the noncustodial parents were more involved in current child-related decisions.

161

In another study, parents using comprehensive divorce mediation reported less conflict

during the divorce process than did parents using litigation.

162

At the final divorce,

mediation parents continued to report significantly less conflict, more cooperation, more

child-focused communication and more noncustodial parent participation in decision-

making about the children, compared with the adversarial sample.

163

These differences

persisted one year after divorce, but were no longer apparent two years post-divorce,

In a study that randomly

assigned disputing

parents to custody

mediation or custody

litigation, parents who

mediated reported less

conflict one year after

settlement compared to

those who litigated.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 21

with the exceptions that mediation parents still relied more on each other for child care

and were more supportive of each other's parental roles than were parents who had

used adversary procedures.

164

The research also suggests that mediation may reduce relitigation rates. Most studies

report higher rates of compliance with mediated agreements than with agreements reached

in the adversarial process.

165

Relitigation rates are low in general among mediated samples

and appear lower than in adversarial samples.

166

Part of the reason for the low relitigation

rates may be that mediated agreements often contain a provision requiring the parties to

attempt to mediate future disputes before resorting to judicial processes.

Despite these apparent enhancements in post-divorce cooperation and communi-

cation between parents, research from the United States and England has found that

mediation does not enhance the psychological adjustment of divorcing parents or their

children in a statistically meaningful way.

167

At least one mediation theorist has sug-

gested that these results are not surprising, given the brevity of most mediation inter-

ventions.

168

b. Client Evaluation of Mediation

Studies that measure satisfaction with the mediation process indicate high levels of

client satisfaction with both the process and the outcomes of mediation.

169

While satis-

faction with mediation was highest among those participants who reached agreement,

several studies have found client satisfaction in the 40% to 60% range among those

participants who were unable to reach agreement.

170

In studies comparing mediation and litigation samples, mediation clients were sig-

nificantly more satisfied than their adversarial counterparts.

171

Positive features of me-

diation from the clients' perspective focus on the ability to communicate to the other

spouse in a contained setting, and include the opportunity for parents to express their

viewpoint, talk about the children, have their concerns taken seriously, and hear helpful

ideas from mediators about parenting issues and plans.

172

Clients generally gave me-

diators high rating for their impartiality, sensitivity and skill.

173

Most studies have found no significant gender differences in satisfaction with me-

diation. This contrasts with adversarial procedures, with which men are significantly

more dissatisfied than women.

174

In disputed custody cases, women in the mediation

and litigation groups were equally likely to feel their rights were protected, whereas the

men in the litigation group were significantly less likely than the men in mediation to

believe the litigation process protected their rights.

175

Mediation parents were also more

likely to report that they each had "won" some of what they wanted, while litigation

parents more often described a "win-lose" outcome.

176

c. Settlement Rates

Mediation research from the United States and elsewhere indicates that parties

reach agreement in divorce mediation between 50% and 80% of the time; most of these

Despite these apparent

enhancements in post-

divorce cooperation and

communication between

parents, research from

the United States and

England has found that

mediation does not

enhance the

psychological adjustment

of divorcing parents or

their children in a

statistically meaningful

way.

22 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

studies found agreement rates in the mid to upper end of this range.

177

This is true of

both court-based and private mediation.

178

Somewhat higher rates of agreement have

been reported in comprehensive divorce mediation, as compared to custody-only me-

diation.

179

This finding is consistent with the more general mediation data, which indi-

cate that agreement is more difficult to reach in single-issue disputes than in multi-

issue settings.

180

No clear relationship emerges from the studies between settlement

rates and the number of hours or mediation sessions offered. However, prescreening to

eliminate certain couples based on criteria such as history of violence or high conflict

levels appears to increase the settlement rate.

181

Several studies indicate that mediation may be less time consuming, and possibly

less costly, than more traditional adversary processes. In one of the few mediation

studies involving random assignment of custody disputes, parents assigned to media-

tion were able to resolve their disputes significantly more quickly than parents in the

litigation group.

182

Even those mediation parents who failed to reach agreement during

mediation were more likely to settle prior to trial than were parents initially assigned to

the litigation group.

183

Several studies involving both custody and private comprehen-

sive mediation have reported that mediation was significantly less expensive than simi-

larly focused adversarial processes,

184

but data from England contradicts this finding.

185

Some evidence also suggests that mediation in the public sector may reduce govern-

ment costs.

186

In California, which mandates mediation of custody and visitation dis-

putes, the number of custody trials has been reduced to fewer than 2% of those parents

initially disputing child-related issues.

187

d. The Content of Mediated Versus Litigated Agreement

It is difficult to generalize about the content of mediated versus litigated agree-

ments, since the content of both types of agreements varies, depending on the law of

the jurisdiction in which the dispute is resolved. Moreover, the extent to which the

background legal regime influences the content of mediated agreements may itself de-

pend on the mediator's professional discipline, the extent to which the mediator relies

on legal norms, and the degree to which the mediator actively intervenes in the media-

tion process.

188

Several studies indicate that some (but not all) mediators consider their

responsibility to inform parties when the mediator views a proposed agreement as un-

fair or as contrary to a child's best interests.

189

In general, mediation results in more joint custody agreements than do adversary

divorce procedures. This should not be surprising, since many mediators and media-

tion theorists are also strong advocates of shared parenting after divorce.

190

Mediated

agreements also tend to be more detailed and specific than either litigated outcomes or

attorney-negotiated settlements.

191

The few studies that have examined financial out-

comes have found no significant differences in child support amounts between medi-

ated and litigated processes, although they suggest that fathers who mediate may pay

for more "extras" for the children and are more likely to agree to provide for college

Several studies indicate

that mediation may be

less time consuming, and

possibly less costly, than

more traditional

adversary processes.

In general, mediation

results in more joint

custody agreements than

do adversary divorce

procedures.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 23

expenses.

192

Property agreements reached in mediation also appear similar to those

reached in lawyer-negotiated settlements.

193

In sum, the social science literature suggests that mediation offers significant ben-

efits for a substantial group of divorcing families. Whether mediation is appropriate

for all divorcing parents, and whether mediation should be a mandatory prerequisite to

a judicial hearing, are matters beyond the scope of this paper. The evidence suggests,

however, that for those couples who are willing to work together to promote their

children's well-being, mediation offers significant advantages over more adversary di-

vorce and custody procedures.

C. Support Groups for Children

Mediation and parent education programs are aimed primarily at adults. Another

type of divorce-related intervention focuses directly on children. Intervention pro-

grams for children come in a variety of forms. One common type of intervention is a

short term support group for children who are experiencing parental separation or di-

vorce.

194

Divorce-related support groups for children are both educational and therapeutic

in nature. The goals of these programs typically include (1) clarifying divorce issues,

(2) providing a supportive place for children to work through difficult emotional is-

sues, (3) helping children develop skills for coping with their feelings, and (4) improv-

ing parent-child communication.

195

Children's support programs use a variety of for-

mats to achieve these goals. Several programs have been developed in conjunction

with academic research protocols. These programs are highly controlled and are gener-

ally school-based.

196

The results of these programs have been well-analyzed and have

produced useful data regarding children's reactions to divorce. Other programs are

court-connected and have been developed collaboratively by attorneys and mental health

professionals. Information regarding the effectiveness of these programs is generally

limited to anecdotal reports. Similarly, programs developed by community-based fam-

ily counseling centers have generally been well received, but it is difficult to measure

their effectiveness.

Children's support groups have several common features. Most use a time-limited,

small group format that typically includes four to ten children. A group setting is pre-

ferred over an individual approach for a number of reasons. First, because resources

for individual counseling are scarce, group programs are able to serve larger numbers

of children with a limited professional staff. Second, children benefit from a group

setting because discussing the divorce with peers who have also gone through a divorce

normalizes the experience and provides a supportive network for them. Third, children

may be more comfortable discussing difficult, sensitive issues with similarly situated

peers than with an adult therapist in individual treatment.

197

The programs use a variety of techniques to focus the children on issues of parental

One common type of

intervention is a short

term support group for

children who are

experiencing parental

separation or divorce.

24 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

separation and divorce. These include the use of age appropriate games and activities,

role playing, audiovisual materials, storytelling, problem solving exercises, and draw-

ing. For example, one program encourages the children to write a group letter about

divorce issues, which is then read in an open session with their parents. Many pro-

grams also use co-facilitators to lead the group, usually consisting of a male/female

team of mental health professionals.

1. School-Based Programs

a. Children of Divorce Developmental Facilitation Group. Social scientists

have developed and evaluated a number of school-based programs for children of di-

vorce. One of the first was the Children of Divorce Developmental Facilitation Group,

developed in the early 1980s in Detroit.

198

The goals of the eight-session program may

be summarized as follows: (1) to normalize the experience of divorce; (2) to clarify

and work through the emotionally confusing and upsetting issues related to divorce;

(3) to develop coping strategies for handling difficult feelings and family interactions;

and (4) to improve parent-child communication.

199

The primary technique used to elicit discussion was role-playing a variety of post-

divorce themes or situation.

200

At the next to last session, the group members were

asked to produce a divorce newspaper, including articles, interviews, and an advice

column. The children took turns being reporters and interviewing each other about

how they felt and thought about divorce. The purpose of the newspaper was to empha-

size the common issues and themes that had emerged over the course of the program.

This technique demonstrated the readiness of the children to disclose in vivid and poi-

gnant detail the feelings evoked by their parents' divorce and by post-divorce life events.

Common issues were: (1) anxiety over parental battles; (2) conflicted loyalties and

uncertainty over changes in custody; (3) sadness over loss of the original family unit;

(4) conflicting emotions over custodial mother's dating; and (5) anger at being disci-

plined by the mother's boyfriend or new husband.

201

Program evaluators studied 46 predominantly white elementary school children

who participated in the Facilitation Group. The study revealed few significant differ-

ences between measurements of the children's adjustment before and after participa-

tion in the program.

202

Children, parents, and program leaders reported positive im-

pressions of the program, but the usefulness of these impressions is limited by the lack

of a control group. Nonetheless, the study revealed valuable information about chil-

dren of divorce. The vivid self-disclosure by the children suggested that divorce-re-

lated issues are of concern to the children even years after the divorce.

203

Further, ex-

cept for the issue of conflict between the parents, all other issues and themes that arose

during the program centered on stresses associated with post-divorce life. This sug-

gests that children's adjustment to divorce goes well beyond working through the con-

fusion and pain of the initial marital disruption.

204

Finally, this study suggests that brief

The vivid self-disclosure

by the children

suggested that divorce-

related issues are of

concern to the children

even years after the

divorce.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 25

interventions, timed closely to the divorce, are but a partial answer to the question of

how to minimize the negative impact of divorce on children.

205

While early interven-

tion is helpful, the combination of post-divorce stresses and developmental changes

suggest the need and opportunity to intervene beyond the point of the immediate dis-

ruption.

206

This program was studied a second time in 1988.

207

The second evaluation in-

volved 81 children and included a delayed-treatment control group.

208

Six months after

the program the custodial parents of boys reported that their sons exhibited lower levels

of aggression and problem behavior than they had before the program. In addition,

both girls and boys reported a decrease in sad/insecure feelings on the Divorce Percep-

tion Test. Most other differences between groups were not significant.

209

A similar school-based intervention program was developed and evaluated by re-

searchers at the University of Michigan.

210

In that project, 53 fourth and fifth grade

children were evaluated on their post-divorce adjustment immediately before and six

months after participation in the eight-week program.

211

At follow-up, most showed

positive change, with those at special risk for adjustment problems showing substantial

gains. Results did not vary with sociodemographic or divorce circumstances.

212

b. Divorce Adjustment Project. The Divorce Adjustment Project (DAP) was

evaluated in 1985.

213

Similar to the Children of Divorce Developmental Facilitation

Group, DAP focused on normalizing the divorce experience, understanding and work-

ing through divorce related feelings, developing coping strategies, and parent-child

communication. The program consisted of 12 weekly sessions for children and their

mothers. The evaluation involved 82 children ranging in age from 7 to 13 years old

who had experienced parental separation or divorce between 9 and 33 months before

participating in the program.

214

The evaluators of the program examined four groups: families in which only the

child participated in a group, families in which only the mother participated in a group,

families in which both the child and the mother participated, and a no-treatment com-

parison group. The participants' adjustment was studied immediately after the conclu-

sion of the program and again after the passage of five months. In general, the results

indicated that participation in a support group was beneficial. Interestingly, the chil-

dren in the child-only group showed greater improvement in self-esteem than either the

mother/child group or the no-treatment group. These children also improved in their

adaptive social skills to a greater extent than did children in the mother/child group.

215

Although these results were somewhat surprising to the evaluators, they are explained

partly as the result of important group differences that existed before the intervention.

216

Families were not randomly assigned to these groups. Children in the mother/child group

had higher self-esteem prior to participation in the program and had experienced more

positive and fewer negative life events that had children in the child-only group. Thus,

the children in the mother/child group were better adjusted before the intervention and

Six months after the

program the custodial

parents of boys reported

that their sons exhibited

lower levels of

aggression and problem

behavior than they had

before the program.

26 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

might not be expected to improve as much as children who were poorly adjusted to begin

with. Other factors affecting the outcome were that the groups differed in the length of

time the parents had been separated and in the mother's occupation.

c. Children of Divorce Intervention Project. The Children of Divorce Interven-

tion Project, CODIP, provides the most extensive evaluation of a school-based inter-

vention.

217

CODIP is an adaptation of DAP and, as such, their goals largely coincide. In

addition to these common goals, CODIP also seeks to enhance children's perception of

themselves and their families. Two initial evaluation studies were conducted with white,

middle-class fourth through sixth graders. One study compared the adjustment of 40

children whose parents had been divorced an average of two years with a demographi-

cally matched sample of 32 children in a delayed treatment control group. The other

study compared 52 children whose parents had been divorced an average of four years

with a demographically matched sample of children from intact families.

218

In each

study, the children were assessed by teachers, parents, and group leaders, as well as

through self-reporting. Assessments were completed two weeks after the group's last

session.

These assessments demonstrated that the program had a positive effect on children's

adjustment to divorce.

219

The study indicated that program children made a better ad-

justment than non-program children with regard to shy and anxious behaviors and to

learning problems. These children also seemed to exhibit a greater increase in adaptive

assertiveness and frustration tolerance than the comparison group.

220

These findings

were consistent among the teachers, parents, and group leaders. Parents in particular

rated children in the intervention groups as showing greater increases in overall adjust-

ment.

221

The children's self-reports, however, showed fewer differences. In particular,

while the program children reported lower levels of anxiety after the group, they did

not differ from the control group on measures of perceived competence and self-es-

teem. Nor did the children's self-perceptions and attitudes about the divorce differ

significantly across groups in either study.

222

The CODIP program was also evaluated in a racially mixed urban population of

second and third graders.

223

The program was modified in an attempt to better match

the lifestyle and experiences of this population. Modifications included a greater ac-

ceptance of diverse family forms and an emphasis on the role of the extended family as

a source of support. The results of the ethnically diverse intervention group coincided

with the previously obtained results of the primarily white group. Specifically, teach-

ers reported that the children who participated in the program displayed greater frustra-

tion tolerance, assertiveness, task orientation, and peer social skills but did not exhibit

changes in acting out, shyness/anxiety, or learning problems.

224

The children taking

part in the program reported more positive feelings about their parents, themselves,

their families, and their ability to cope with problems.

225

The parents of program chil-

dren also reported a significant increase in their children's overall adjustment.

226

These

These assessments

demonstrated that the

program had a positive

effect on children's

adjustment to divorce.

219

The study indicated that

program children made a

better adjustment than

non-program children

with regard to shy and

anxious behaviors and to

learning problems.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 27

findings are significant because this urban population, by an objective measure, had

more serious social problems and fewer resources than the more suburban children.

227

2. Community-Based Programs

Another type of intervention for children is the community-based program. These

programs also aim to ameliorate children’s post-divorce adjustment by providing so-

cial support and helping children develop effective strategies for coping with divorce

related stressors. While group therapy has been a valuable tool in addressing the men-

tal health concerns of adults for many years, groups designed specifically for children

are a more recent phenomenon.

228

Moreover, when these groups have been offered

they have often been limited to children who have evidenced significant mental health

problems.

229

In response to the mounting social science evidence about the effects of

divorce on children, and the successes of the school-based interventions, a number of

community-based programs have been developed around the country.

a. They're Still Our Children. One community based program for children is

They’re Still Our Children.

230

Designed to educate children about the divorce and sepa-

ration process, this program is a mandatory court-based program in Hawaii.

231

The 2nd

Circuit Court of Hawaii mandates that within six weeks of filing a divorce complaint,

all parents and their children six years of age and older must attend an educational 2

hour program about divorce and separation. The goals of this program are straightfor-

ward -- it seeks to (1) demystify the court process; (2) assure children that divorce is

not their fault; (3) assure them that feelings of loss, anger, and distrust are common; and

(4) help them realize that the family is still a family, albeit in a different form.

232

The first segment of the program takes place in a courtroom. Children watch a 20-

minute video, Divorce and Other Monsters, with their parents. The groups are then

separated. The segment run for children is led by a team of a judge, children’s coor-

dinator, and community volunteers. The children are introduced to the courtroom and

urged to express their feelings about the divorce and their parents in the form of a group

letter to their parents. The last segment reunites the children with their parents. The

group letter is read to the parents to reinforce the information that the parents were

given in their segment.

233

b. Kid's Turn. Kid’s Turn is another child-oriented educational program located

in the San Francisco Bay area for families who are reorganizing after separation or

divorce.

234

The program was founded by attorneys and is sponsored by the court, but

divorcing parents are not required to attend.

235

The course is taught by qualified educa-

tional or mental health professionals. The six-week program consists of six 90-minute

sessions that assist children in dealing with the changes in the family. Children are

grouped by age and the curriculum is tailored to meet the developmental needs of each

These programs also aim

to ameliorate children’s

post-divorce adjustment

by providing social

support and helping

children develop effective

strategies for coping with

divorce related stressors.

28 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

age group. In general, the workshops teach children skills to help them understand and

talk about the changes taking place within their families.

236

The workshops engage the

children in group projects and games that reflect common and increasingly complex

social interactions. The group is structured progressively so that each session builds on

what was learned previously.

Participants in Kid’s Turn report positive results from the program, but there have

been no long-term outcome studies on the effect of the program.

237

At the end of each

session, written evaluations are completed by all but the pre-school aged group. The

responses received have been overwhelmingly positive. Parents and children alike say

the most valuable aspects of the program are the support it provides them, an increased

understanding of the emotional and psychological aspects of the divorce process, and

an improvement in parent-child and parent-to-parent communication. One adult par-

ticipant in the program noted that “Kid’s Turn classes have made it so much easier for

me to talk with my children about anything relating to life with two homes and sepa-

rated parents.”

238

c. Marriage Council of Philadelphia. The Marriage Council of Philadelphia

offers a support group for children based upon the group therapy model.

239

The impetus

behind the development of that program was a growing concern among staff therapists

that children of divorcing families were not receiving adequate emotional support.

240

Divorced parents reported to their therapists that although their communication with

their children was generally good, most of the children had never initiated a conversa-

tion with their parents on the subject of divorce. Parents also reported that their chil-

dren were unable to articulate feelings or respond to inquiries about their experiences.

241

The Marriage Council model is unique in a number of aspects. Sessions cover a

relatively long period of time -- up to four months. A child can attend more than one

group series and can thus be followed for as long as a year. The group is run by a male/

female team of experienced family and creative arts therapists. The “team permits

individual, family and group psychodynamics to be treated in responsible, therapeuti-

cally effective ways that foster the cognitive and social development of children as they

learn to adapt to the specific challenges of their altered life situation.”

242

Each group

series includes at least one parent and all the children in a family who are between 4 and

13 years of age. The parents participate in parent support meetings and individually

attend at least one children's group session as a participant. If the family agrees, the

group leader may also contact other mental health professionals, lawyers, teachers,

clergy, etc., who may be helping the family. This holistic approach maximizes the

mobilization of resources available to the family during the treatment process.

243

Anecdotal reports suggest that participating parents view the program positively.

Parents of children who have participated in the support groups report that open discus-

sions between themselves and their children on divorce related topics occur more fre-

quently than before they attended the group and that the children often initiate these

Anecdotal reports

suggest that participating

parents view the program

positively.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 29

discussions.

244

They also report a decrease in the intensity and frequency of angry ex-

changes between themselves and their children over matters of household routine.

Parents report that their children are more willing to discuss separation/divorce related

events and feelings with peers and significant adults outside the home.

245

Noncustodial

parents report increased comfort and greater candor from their children about past and

present dissatisfactions and fears of abandonment.

246

The children most comfortable

with the divorce over time were those who reported the least acrimonious parental

interaction, and could clearly describe the outcome of the separation arrangement of

the parents.

247

d. Families in Transition. The Families in Transition (FIT) is a program for

divorcing parents and children designed by the Family Court of Jefferson County, Ken-

tucky in collaboration with a prominent children's agency and the University of Louis-

ville Family Therapy Program.

248

A hybrid program, FIT requires both parents and

children between the ages of 8 and 16 to attend three weekly concurrent but separate

sessions. The noncustodial parent attends the program at a separate time during the

week. Each 2

-hour session is conducted by a trained facilitator in a community

setting (e.g. church, family agency, or community center) that is easily accessible, but

that also provides adequate protection to families. The curriculum emphasizes a sup-

portive climate for exploring feelings, acquisition of problem solving skills for divorce-

related problems, and ways for parents and children to develop better relationships

with each other.

249

The authors of the project developed the Divorce Adjustment Inventory (DAI) to

assess the effects of the FIT program on parents and children.

250

The DAI provides

separate ratings for parents and children of pre- and post-divorce adjustment at six

months and one year after completion of the program. Parents and children rate their

adjustment with respect to family functioning, coping skills, and social support sys-

tems. Results of these questionnaires indicate that children who have participated in

the program are “adjusting satisfactorily to the divorce.” Parent participants also report

high levels of satisfaction with the program. Eighty-nine percent of the parents indi-

cated that they were “satisfied” or “very satisfied” with the program; 60% reported that

they would attend follow-up sessions, if available.

251

Conclusion. Preliminary evidence suggests that short term counseling and sup-

port groups may be a useful mechanism for helping children deal with the emotional

issues raised by parental separation and divorce. Although most of the social science

studies focus on school-based groups designed by university researchers, anecdotal

evidence indicates that both children and parents also respond positively to court-con-

nected and community-based programs. The effect of such child-focused interventions

on longer term measure of child well-being is considerably less clear.

Results of these

questionnaires indicate

that children who have

participated in the

program are “adjusting

satisfactorily to the

divorce.

30 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

D. Parenting Plans

Parenting plans are another vehicle designed to ameliorate the negative effects of

divorce on children. Conceived as the "vehicle that can transport us to a more human-

istic, family-based system of family law," parenting plans embody a significant change

in traditional court-based custody determinations.

252

A parenting plan, simply put, is a detailed articulation of post-divorce parenting

responsibilities.

253

A properly drafted plan addresses the specific aspects of the parents'

roles in the child's life and distributes responsibility for those functions accordingly.

254

Specifically, the plan outlines where the child will reside, when and how the child will

spend time with the non-residential parent, what the transportation arrangements will

be and how the parents will make specific medical, educational, and religious decisions

for the child.

255

The philosophical basis of the parenting plan is that post-divorce parenting should

be a shared responsibility rather than a reward given to the parent who "wins" a custody

battle. Although shared post-divorce parenting is not a new idea,

256

Washington was

the first (and thus far the only) state to embrace the concept as a means of changing the

way in which custody proceedings are handled. The Parenting Act of 1987 was de-

signed to diminish the need for judicial decision-making by forcing parents to plan for

the post-divorce needs of their children and to develop ways to resolve future parenting

conflicts.

257

The Act requires all divorcing parents to file with the court, either jointly or

individually, a proposed parenting plan.

258

The goals of the plan requirement are four

fold: (1) to facilitate the individualization of the custody process; (2) to encourage the

participation of both parents in the child-rearing process; (3) to educate parents con-

cerning their parental responsibilities; and (4) to prevent future or continued conflicts

within the family unit.

259

In keeping with its commitment to shared parenting, the Act eliminates the com-

monly used legal terms of "custody" and "visitation".

260

Instead, plans must address

parenting issues in terms of parental responsibility rather than parental rights and must

describe child care arrangements in terms such as "residential care" and "decision-

making” authority.

261

There are four basic components of Washington's parenting plan

legislation. First, parents must designate in full detail where the children will reside

after the parents have separated.

262

This schedule must include a plan for the school

year, vacations, holidays, special occasions, and birthdays. Parents must also allocate

responsibility for transportation. Second, parents must indicate who will make major

decisions regarding education, health care, religious upbringing, and all other major

issues. Such decisions may be made by one parent, both parents, or divided between

them. Third, the parenting plan must provide some method of resolving future parenting

disputes. Possible dispute resolution procedures include counseling, mediation, and

arbitration. Parents who cannot agree on the procedure must resort to the court system

to resolve their disputes.

263

Finally, in response to the concern that forced co-parenting

A parenting plan is a

detailed articulation of

post-divorce parenting

responsibilities.

Third, the parenting plan

must provide some

method of resolving

future parenting disputes.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 31

may be detrimental to an abused spouse or to an abused or neglected child, Section 10

of the Act restricts the involvement of a parent who has engaged in abusive behavior.

264

Effectiveness of the Parenting Plan Mandate. Only a few studies have attempted

to assess the effects of Washington's Parenting Plan mandate. A preliminary study, con-

ducted during the first year of the plan requirement, suggested that, in comparison to pre-

Act custody agreements, mandatory parenting plans increased shared parental decision

making and residential time post-divorce. However, the study found no direct evidence

that the parenting plan mandate succeeded in refocusing parents from their own needs to

those of their children, thereby minimizing the adverse impact of divorce.

265

A more recent study casts further doubt on whether the parenting plan mandate is

achieving its intended goals. This study was conducted by Dr. John Dunne, a research

psychiatrist and a strong supporter of the Washington legislation. Dr. Dunne compared

50 families who divorced during the first year of the parenting plan mandate with 50

families who divorced the previous year, and therefore were not subject to the statutory

requirement.

266

Dunne used a detailed questionnaire, completed by parents one and two

years post-divorce, to assess parental and child well-being in a wide variety of areas,

including the degree of intra-family conflict.

With respect to children, Dr. Dunne found that going through the parenting plan

process made no difference in a child's adjustment to divorce or in the quality of the

child's relationship with either parent. The only significant variable affecting child

adjustment to divorce was the passage of time; adjustment improved over time for

children in both the study and the control groups. With respect to parents, the study

results were even less encouraging. Overall, parental adjustment to divorce improved

only slightly over time, but this improvement was not statistically significant. More

disappointing, the parents who were subject to the parenting plan mandate actually

fared

less well than the control group, in terms of both individual well-being and their

relationship with their ex-spouses.

Dr. Dunne offers a number of possible explanations for these surprising results.

First, he notes that during the first year of the parenting plan mandate, the Washington

child support guidelines tied parental support obligations to the number of overnights

the child spent with each parent, thereby increasing the financial incentive for parents

to fight about residential arrangements.

267

Second, Dunne points out that the Washing-

ton statute actually requires divorcing parents to negotiate two separate parenting plans

-- a Temporary Plan that is effective during the divorce process and a Permanent Parenting

Plan that takes effect once a final divorce has been granted. In essence, according to

Dunne, "the parties are forced to get divorced twice," with all of the attendant anger and

hurt. On the basis of his study results, Dr. Dunne recommends that the Washington

statute be amended to eliminate the temporary parenting plan requirement.

Dunne also acknowledges that his study has several important limitations. First,

the sample size was small and was the product of a low response rate. Thus, the fami-

lies who participated in the study may not be representative of divorcing parents in

A preliminary study,

conducted during the

first year of the plan

requirement, suggested

that, in comparison to

pre-Act custody

agreements, mandatory

parenting plans

increased shared

parental decision making

and residential time post-

divorce.

32 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

Washington, either before or after the parenting plan mandate. Second, the study used

a non-standard questionnaire. It also relied exclusively on responses from parents and

did not include any direct contact with or feedback from the children. Finally, although

Washington law currently requires divorcing parents to negotiate and file parenting

plans, the court system does not mandate divorce-related parenting education, nor does

it provide other support that might help parents negotiate fair and workable post-di-

vorce parenting arrangements. Thus, the likelihood that any particular divorcing fam-

ily will benefit from the parenting plan mandate may depend significantly on the family's

access to -- and willingness to utilize -- non-court-connected resources.

The likelihood that any

particular divorcing

family will benefit from

the parenting plan

mandate may depend

significantly on the

family's access to -- and

willingness to utilize --

non-court-connected

resources.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 33

he Family Division of the Circuit Court for Baltimore City was established in

September, 1996 pursuant to a legislative grant to the City of Baltimore. The

majority of the litigants seeking assistance from the circuit court in family matters

come from families who, in addition to their need for a forum to resolve legal disputes,

require multiple community services to resolve the problems in their lives. Thus, in

addition to the primary goal of efficient case management, the Family Division assists

litigants in accessing the social service resources that will adequately address their

nonlegal problems.

The concept of a unified Family Court is not new.

268

It is premised upon the notion

that the traditional adversary system does not promote the effective and cooperative

post-divorce parenting necessary to ensure the future welfare of children and their fami-

lies. Courts that have pursued the family court initiative also recognize that traditional

case management systems splinter family controversies among several different courts

within the same jurisdiction. Such splintering reduces the effectiveness of judges and

the quality of judicial decision-making in family law matters. Thus, most jurisdictions

looking to create a family court do so with the following goals in mind: (1) to bring

jurisdiction over family related matters within the domain of one court; (2) to provide a

forum wherein family issues are decided with a family focus -- that is, in appropriate

cases, decision-makers are afforded the opportunity to look not only at the individual

but at the family circumstances and dynamics which surround the individual; and (3) to

strengthen court and community ties.

269

Baltimore City's Family Division has taken significant steps toward achieving these

goals. Chosen as one of five jurisdictions in the nation to benefit from a Robert Wood

Johnson Foundation Grant to the American Bar Association's Standing Committee on

Substance Abuse,

270

Baltimore City has implemented a number of services and programs

to improve its management of domestic cases. The most significant improvement is the

manner in which cases involving children are handled from the moment they are filed. A

Case Coordinator now reviews every domestic relations case in which minor children are

involved to coordinate referrals to family counseling, mediation, or parenting classes.

The coordinator also develops new projects, seeks grant funding to expand court services

available to family litigants, and builds partnerships with community resources for sub-

stance abuse, domestic violence, and family counseling programs.

The Family Division has several services designed to expedite cases through the

system, including pro se litigation education, family mediation services, and a volun-

teer attorney settlement panel. The Assisted Pro Se Office is staffed by students from

the University of Maryland School of Law who assist pro se domestic litigants with the

completion of form pleadings. The law students also refer the litigants to appropriate

community and court-connected resources. The Family Division also mandates that all

litigants with custody disputes who are represented by counsel attempt to mediate their

disputes prior to being given a hearing. Mediation services are provided through the

court by local alternative dispute resolution practitioners. Unrepresented litigants are

Section IV: Initiatives For a Unified

Family Court In Maryland

The concept of a unified

Family Court is premised

upon the notion that the

traditional adversary

system does not promote

the effective and

cooperative post-divorce

parenting necessary to

ensure the future welfare

of children and their

families.

The Family Division has

several services

designed to expedite

cases through the

system, including pro se

litigation education,

family mediation

services, and a volunteer

attorney settlement

panel.

34 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

encouraged to participate in mediation, but by law cannot be ordered to do so.

271

All

cases filed in the Family Division are also scheduled for pre-trial settlement confer-

ences. Volunteer attorneys from the family practice bar offer their services to facilitate

early settlement of cases.

The Family Division also provides a number of support services to divorcing or

separating parents. All parents who share children in common are required to attend a

five-hour parenting seminar conducted by the Sheppard Pratt Health Systems. The

seminar focuses on the effects of separation and divorce on children and provides par-

ents with skills and ideas designed to minimize the negative consequences of these

changes in family structure. The Supervised Visitation Project provides opportunities

for non custodial parents to visit with their children under the guidance of social work-

ers. The goals of the Visitation Project are to support positive parenting skills and to

prevent child abuse. The Project has recently expanded to include weekend and evening

hours in order to accommodate working parents. Finally, the Office of Medical Ser-

vices provides custody evaluations and substance abuse and mental illness evaluations

for use in contested custody matters.

Judge Albert J. Matricciani, Jr. is the judge in charge of the domestic cases in the

Family Division. His vision for the court is to develop additional support services for

families, including the appointment of a Social Services Coordinator, a revised intake

process for domestic cases, and the development of a community-based advocacy group

with specific tasks and structure to provide on going support for the Family Division.

The Social Services Coordinator, a licensed social worker, would review new Family

Division cases and assess the needs of litigants and families for social services interven-

tion. An important component of this assessment would be a determination of the need

for substance abuse treatment. The revised intake procedures would include the adoption

of an integrated case management team approach to processing and managing Family

Division cases from case initiation through disposition.

272

Judge Matricciani further envisions providing case monitors to assist litigants with

service of process and dispositional issues, a fully integrated physical plant for the

Family Division as a whole, longer rotations for Family Division judges, and the devel-

opment of standards by which to measure objectively the success and effectiveness of

the Family Division. If additional funding could be obtained, the Family Division

would also add educational and therapeutic programs for children going through di-

vorce and/or custody disputes and coordinate with the Baltimore Coalition against Sub-

stance Abuse in developing further Family Division services.

In sum, the judges and support staff of the Baltimore City Circuit Court Family

Division are working hard to ensure that the unified family court model improves the

lives of litigants within the system and minimizes the potentially destructive effects of

separation and divorce on children and families. We believe that Baltimore City is in a

unique position not only within Maryland, but in the nation, to accomplish true family-

focused reform of its judicial system.

All parents who share

children in common are

required to attend a five-

hour parenting seminar

conducted by the

Sheppard Pratt Health

Systems.

We believe that Baltimore

City is in a unique

position not only within

Maryland, but in the

nation, to accomplish

true family-focused

reform of its judicial

system.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 35

hildren who experience parental divorce or separation are at risk for negative

outcomes in a variety of developmental areas. These risks, however, are not

insurmountable. Rather, they can be ameliorated by divorce-related interven-

tions that reduce parental conflict, ensure children's economic security, and promote

effective and cooperative parenting after divorce. Because divorce requires a judicial

decree, the court system can play an important role in developing, implementing, and

coordinating these family-focused interventions. Based on the foregoing analysis of

the effects of divorce and separation on children and the divorce related interventions

we have examined, and in light of the initiatives undertaken by Baltimore City, we

make the following recommendations for policy makers and funders interested in im-

proving outcomes for children of divorce and promoting family-focused court reform

in Maryland:

1. Because the Impact of Divorce is Multi-faceted, Interventions Must be Com-

prehensive and Coordinated to Serve the Entire Family. No single interven-

tion program is likely to be effective in isolation. Rather, courts and policy

makers should take a comprehensive approach to divorce-related interventions.

Programs should be coordinated to serve the entire family, even if particular

interventions focus only on specific family members. Interventions should also

be tailored to the specific needs and socio-economic characteristics of the popu-

lation being served.

2. To Facilitate Comphehensive and Coordinated Divorce Reform, Advocates

Should Support the Unified Family Court Initiative Underway in Balti-

more City. The unified family court initiative underway in Baltimore City sig-

nals an important shift towards a child- and family-focused orientation on the part

of the legislature and the judiciary. Policy makers, advocates, and funders should

seize this opportunity to ensure that reform is conducted in a comprehensive and

coordinated manner. Baltimore City should be given the financial support it needs

to expand its existing programs and to improve its coordination of family cases.

Since domestic violence is a factor in a significant number of divorce and cus-

tody disputes, particular attention should be given to integrating programs and

court procedures dealing with domestic violence into the evolving family divi-

sion structure. Procedures should be developed and implemented to ensure that

families affected by domestic violence have access to appropriate child-focused

interventions and that such interventions address the particular dynamics of

these families. Divorce and custody cases should also be coordinated with pro-

ceedings in juvenile court, particularly Child In Need of Assistance (CINA)

proceedings, to ensure that all matters involving a particular family are consid-

ered in relation to each other.

Section V: Conclusions and

Recommendations

These risks, however, are

not insurmountable.

Rather, they can be

ameliorated by divorce-

related interventions that

reduce parental conflict,

ensure children's

economic security, and

promote effective and

cooperative parenting

after divorce.

36 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

3. Courts and Policy Makers Should Expand the Use and Availablity of Me-

diation in Order to Reduce Divorce-Related Parental Conflict. Social sci-

ence research confirms that divorce-related parental conflict is particularly dam-

aging to children. Courts and policy makers should seek to reduce such conflict

by supporting the development and use of less adversarial procedures -- par-

ticularly mediation -- to resolve disputes between divorcing parents. In particu-

lar, courts should explore the feasibility of offering low cost, voluntary media-

tion services to low- and middle-income domestic litigants who may not be

represented by counsel. In addition, parenting plan requirements should be

explored further to determine whether they would be more effective if used in

combination with mediation, or other divorce-related interventions.

4. Divorcing Parents Should be Required to Participate in Parenting Education

Programs. Preliminary research suggests that divorce-related parenting educa-

tion benefits both children and parents by emphasizing problem-solving skills

and promoting effective and cooperative parenting after separation and divorce.

The Maryland legislature has endorsed the idea of parenting education by autho-

rizing judges across the state to require divorcing parents to attend parenting semi-

nars as a condition of receiving a divorce. The Court of Appeals should promptly

carry out its statutory mandate to implement this legislative directive by drafting

rules that govern the content of these seminars, set sanctions for non-compliance,

and establish criteria for exemption from the seminar requirement.

Funders and policy makers should support the parenting education programs

already in place in several jurisdictions in Maryland. Additional resources should

be provided to develop and implement similar programs in jurisdictions where

none currently exist. As outlined in this paper, parenting education programs

currently take various forms. Resources should be made available to experi-

ment with various program models to determine which components are most

effective and offer the most efficient use of scarce resources. At the same time,

a research team should conduct a methodologically rigorous and comprehen-

sive study of the effectiveness of several specific programs, both in terms of the

benefits they offer divorcing families and their impact on relitigation rates and

use of judicial resources.

5. Because Divorce-Related Financial Hardship Hurts Children, A Compre-

hensive Study Should Be Conducted to Determine the Adequacy and En-

forcement of Maryland’s Current Child Support Guidelines. Social science

evidence suggests that much of the negative impact of divorce on children can be

traced to the economic hardship often experienced by children and their primary

caretakers after separation and divorce. A comprehensive approach to mitigating

the negative effects of divorce must therefore focus on improving the post-di-

In particular, courts

should explore the

feasibility of offering low

cost, voluntary mediation

services to low- and

middle-income domestic

litigants who may not be

represented by counsel.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 37

vorce economic circumstances of children and their primary caretakers. Ensur-

ing that fair and adequate child support obligations are imposed and enforced is

an important part of this effort. A comprehensive study should be done to deter-

mine whether Maryland's current child support guidelines are adequate, whether

those guidelines are being applied consistently and appropriately around the state,

and the extent to which divorce-related child support obligations are being en-

forced. This study should include an examination of the recent privatization of

the child support enforcement system in Baltimore City.

6. Support Groups for Children Must be Developed and Studied as Part of a

Comprehensive Approach to Mitigating the Effects of Divorce and Separa-

tion on Children. Research suggests that short term counseling and support

groups are an important mechanism for helping children cope with the transi-

tions and emotional upheaval that often accompany parental divorce. Success-

ful models for these groups have been designed and implemented in a number

of university and community settings across the country. Qualified local orga-

nizations and community groups should be encouraged to develop and imple-

ment support groups for children, in conjunction with the court system, as part

of a comprehensive approach to mitigating the negative effects of divorce on

children and families. These programs should include a rigorous evaluation

component, carried out by independent researchers. This research component

should compare programs of different lengths and content, offered at different

points in the divorce process, in order to determine the most effective use of

limited resources.

38 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 39

Andrew Schepard et al., Preventing Trauma for the Children of Divorce Through

Education and Professional Responsibility, 16 Nova L. Rev. 767, 768 (1992).

The National Center for Health Statistics reported approximately 9.5 divorces per

1000 married women or fewer than 400,000 divorces in the 1950's and early

1960's. By 1980, there was an all-time high of 1,189,000 divorces or 22.6 for

every 1,000 married women. In 1990, 2.4 million weddings were performed; that

same year 1.2 million divorce proceedings were filed. See Laura Gatland, Putting

the Blame on No-Fault, A.B.A. J., April 1997 at 50, 51.

Judith Wallerstein, Children of Divorce: An Overview, 4 Behav. Sci. & L. 105,

107 (1986).

See Joan B. Kelly, Current Research on Children's Postdivorce Adjustment: No

Simple Answers, 31 Fam. & Conciliation Cts. Rev. 29, 31 (1993). [Hereinafter

referred to as Kelly, Children's Postdivorce Adjustment.]

See P. Lindsay Chase-Lansdale et al., The Long-Term Effects of Parental Divorce

on the Mental Health of Young Adults: A Developmental Perspective, 66 Child

Development 1614, 1615 (1995) (citations omitted).

See JUDITH S. WALLERSTEIN & JOAN B. KELLY, SURVIVING THE BREAKUP: HOW

CHILDREN AND PARENTS COPE WITH DIVORCE 169-73, 232-33 (1980).

See Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A

Review, 30 J. Am. Academ. Child Adolescent Psychiatry 349, 353-54 (1991).

See Paul R. Amato, Life-Span Adjustment of Children To Their Parents' Divorce,

4 The Future of Children: Children and Divorce 143, 145-46 (1994) (discussing a

meta-analysis of 92 studies involving children of divorce); SARA MCLANAHAN &

GARY SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HELPS AND WHAT

HURTS 1 (1994).

Amato, supra note 8, at 145.

Kelly, Children's Postdivorce Adjustment, supra note 4, at 30-31.

See Amato, supra note 8, at 145-46.

Barbara Vobejda, Children of Divorce Heal Slowly, Study Finds, THE WASHINGTON

POST, June 3, 1997, at E1. Judith Wallerstein, a California psychologist, reports

that half of the 131 young people in her ongoing study were involved in serious

drug and alcohol abuse, many before the age of 14. Many of the girls also

became sexually active as early adolescents. Id. One-third of the 26 young adults

ended their education at the high school level, and only forty percent eventually

graduated from college. Id. Most notable, however, was the finding that "all

without exception were very afraid they would repeat the failure they saw around

them when they got in relationships." Id.

ROBERT E. EMERY, RENOGOTIATING FAMILY RELATIONSHIPS: DIVORCE, CHILD CUSTODY

AND

MEDIATION 200 (1994).

Amato, supra note 8, at 146.

Vobejda, supra note 12. Dr. Wallerstein's conclusions, released in June 1997, are

based on her continuing study of 131 middle-class children whose parents were

divorced in the early 1970s. That research concluded that children’s problems

begin pre-divorce via their parents’ failure to sustain love and commitment.

Footnotes

40 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

Amato, supra note 8, at 146-47.

Kelly, Children's Postdivorce Adjustment supra note 4, at 31(citing P. Amato & B.

Keith, Parental Divorce and Adult Well Being: A Meta-analysis, 53 J. Marriage

and Fam. 43 (1991)).

Amato, supra note 8, at 146. Professor Amato notes, for example, that a recent

analysis of studies dealing with childhood sexual abuse revealed average effect sizes

three to four times larger than those based on studies of children of divorce. Id.

Id.

Emery, supra note 13, at 194. [emphasis in original]

Id.

Kelly, Children's Postdivorce Adjustment, supra note 4, at 31.

Id. at 32.

See Amato, supra note 8, at 147-149.

Id. at 148. Some research suggests that parental divorce may be less detrimental

for African-Americans than for whites. Id.

Chase-Lansdale et al., supra note 5, at 1615.

Id.

See Amato, supra note 8, at 149.

Emery, supra note 13 at 205 (citations omitted); see also Janet R. Johnston, High-

Conflict Divorce, 4 The Future of Children: Children and Divorce 165, 172-76

(1994).

Johnston, supra note 29, at 172.

Id. at 172-76.

John H. Grych & Frank D. Fincham, Interventions for Children of Divorce:

Toward Greater Integration of Research and Action, 111 Psychol. Bull. 434, 441

(1992) (citation omitted).

Id.

Kelly, Children's Postdivorce Adjustment, supra note 4, at 34 (citing E.M.

Hetherington, et al., Effects of Divorce on Parents and Children, in NONTRADI-

TIONAL FAMILIES (M. Lamb ed., 1982)).

Id. at 35.

Johnston, supra note 29, at 172.

Kelly, Children's Postdivorce Adjustment, supra note 4, at 33.

See, e.g., Jay D. Teachman, & Kathleen M. Paasch, Financial Impact of Divorce

on Children and Their Families, 4 The Future of Children: Children and Divorce

63 (1994) (noting that "mothers and children often experience a significant

decline in income following a divorce."). The enforcement of child support

orders is of crucial importance in maintaining the welfare of children, especially

for custodial parents of modest income or limited ability to deal with a sophisti-

cated legal system. While an analysis of the state and federal child support

enforcement system is beyond the scope of this paper, social scientists agree that

revisions to the system are needed in the areas of: (1) establishing paternity; (2)

expediting the issuance of child support orders; (3) ensuring the timeliness of

support payments; and (4) enforcing and collecting the payment of arrearages.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 41

See generally, Paula G. Roberts, Child Support Orders: Problems with Enforce-

ment, 4 The Future of Children: Children and Divorce 101 (1994).

Amato, supra note 8, at 151.

Grych & Fincham, supra note 32, at 444; see also Amato, supra note 8, at 151.

Grych & Fincham, supra note 32, at 444.

Id. (citing J. Guidubaldi et al., The Legacy of Parental Divorce, in ADVANCES IN

CLINICAL CHILD PSYCHOLOGY 109 (B.B. Lahey & A.E. Kazdin eds., 1984)).

McLanahan & Sandefur, supra note 8, at 2 ("Low income -- and the sudden drop

in income that often is associated with divorce -- is the most important factor in

children's lower achievement in single-parent homes, accounting for about half of

the disadvantage."). The single parent households in this study included both

divorced and never-married families.

Kelly, Children's Postdivorce Adjustment, supra note 4, at 36-37.

Amato, supra note 8, at 150 (citing Hetherington et al., supra note 34).

Id., see generally Emery, supra note 13.

Amato, supra note 8, at 150.

Janet R. Johnston, High-Conflict Divorce, 4 The Future of Children: Children and

Divorce 165, 172 (1994).

Ross A. Thompson, The Role of the Father After Divorce, 4 The Future of

Children: Children and Divorce 210, 222 (1994) ("Although a substantial

minority of fathers maintain or enhance the frequency of visitation over time, for

most men, contact with children may initially increase immediately after the

divorce but then it typically declines, sometimes strikingly, during each succes-

sive year.").

Amato, supra note 8, at 150; see Thompson, supra note 49, at 210-11.

See McLanahan & Sandefur, supra note 8, at 3-7 (explaining how the decision of

parents to live apart deprives children of valuable parental and community

resources).

See Kelly, Children's Postdivorce Adjustment, supra note 4, at 38. This finding

was more consistent for boys than for girls. Id.

Id.

See id. at 37-38.

Thompson, supra note 49, at 222.

See Kelly, Children's Postdivorce Adjustment, supra note 4, at 38-39.

Joan B. Kelly, The Determination of Child Custody, 4 The Future of Children:

Children and Divorce 121, 132 (1994).

See Johnston, supra note 29, at 172-76.

Kelly, Children's Postdivorce Adjustment, supra note 4, at 38-39.

See generally, Barbara Babb, An Interdisciplinary Approach to Family Law

Jurisprudence: Application of an Ecological and Therapeutic Perspective, 72

Indiana L. Rev. 776 (1997); Jana B. Singer, The Privatization of Family Law,

1992 Wisconsin L. Rev. 1443.

Tamar Levin, Divorcing Sensibly: Courts Are Requiring Classes So Marital

Breakups Won't Tear Children Apart, CHICAGO TRIBUNE, May 7, 1995, at S9. A

42 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

recent editorial suggested that within the last five years, over 600 counties have

developed parent education programs. Ingrid E. Slezak, Parent Education: It

Makes a Difference, 57 Or. St. Bar Bull. 70, 70 (1996).

Peter Salem, et al., Parent Education as a Distinct Field of Practice: The Agenda

for the Future, 34 Fam. & Conciliation Cts. Rev. 9, 13 (1996) [hereinafter Salem,

Parent Education].

Virginia Petersen & Susan B. Steinman, Helping Children Succeed After Divorce:

A Court-Mandated Educational Program for Divorcing Parents, 32 Fam. &

Conciliation Cts. Rev. 27, 29 (1994).

Peter Salem, Education for Divorcing Parents: A New Direction for Family

Courts, 23 Hofstra L. Rev. 837, 837 (1995). [hereinafter Salem, New Direction].

Id. at 840-841.

Id.

See Petersen & Steinman, supra note 63, at 35.

Salem, Parent Education, supra note 62, at 19.

Petersen & Steinman, supra note 63, at 33.

Jack Arbuthnot, et al., Court-Sponsored Education Programs for Divorcing

Parents: Some Guiding Thoughts and Preliminary Data, 45 Juv. & Fam. Ct. J. 77,

79 (1994) (favoring mandatory programs over voluntary programs).

Salem, Parent Education, supra note 62, at 19.

Id. at 18; see also, Salem, New Direction, supra note 64, at 841; Schepard, et al.,

supra note 1, at 775.

Petersen & Steinman, supra note 63, at 28.

See Mark A. Cohen, Mandatory Divorce Class to “Sensitize” Parents: Some

Lawyers Criticize Four-County Experiment, MASS. LAWYERS WEEKLY, March 13,

1995, at 1.

See Larry Lehner, Education for Parents Divorcing in California, 32 Fam. &

Conciliation Cts. Rev. 50, 50 (1994) (finding that "parent education and orienta-

tion programs in California courts have continued to evolve with a trend toward

mandating orientation and/or education programs as an integral part of the

mediation process."); see also Arbuthnot, supra note 70, at 79.

Karen R. Blaisure & Margie J. Geasler, Results of a Survey of Court-Connected

Parent Education Programs in U.S. Counties, 34 Fam. & Conciliation Cts. Rev.

23, 26-27 (1996).

MD. FAM. LAW CODE ANN. §7-103.2 (1991 & Supp. 1997). Earlier versions of the

legislation passed by the Senate would have required divorcing parents to attend

the educational seminar in all cases in which issues of child support, custody, or

visitation were raised. The legislation was amended in conference to give judges

discretion whether or not to require attendance.

Schepard, et al., supra note 1, at 772.

Id. at 773.

Andrew Schepard, Report and Model Statute on an Interdisciplinary Educational

Program for Divorcing and Separating Parents, 27 U. Mich. J.L. Reform 131,

153 (1993).

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 43

Id. at 152-53.

Id.

Id. at 152. Judges considering referrals were advised that it would be desirable

for parents to be referred early in their litigation and that any cases involving

serious allegations of abuse or neglect or with a long history of custody motions

should not be referred. Id. at 154.

Hon. Sondra Miller et al., Parent Education and Custody Effectiveness

(P.E.A.C.E): A Preliminary Report to the New York Legal Community, N.Y. St.

B.J., Feb. 1996 at 42, 42. P.E.A.C.E. is an entirely educational program and does

not involve mediation, arbitration or therapy. Schepard, supra note 80, at 155.

Schepard, supra note 80, at 155.

Id.

See Miller, supra note 84, at 42.

Id. at 44.

Id.

Id. at 43. See also, Schepard, supra note 80, at 133.

See written testimony of Dr. Howard Garon, presented to the Maryland General

Assembly, 1997 Term, on file with the authors.

Id.

This program was originally developed as “Families in Transition - A Divorce

Workshop for Parents and Children.” See Carol Roeder-Esser, Families in

Transition: A Divorce Workshop, 32 Fam. & Conciliation Cts. Rev. 40, 40 (1994).

Begun in Johnson County, Kansas in 1976, it was one of the first divorce educa-

tion programs in the country. The program was an experiment at the time and was

designated as an educational intervention. Id. The program's goal was to help

“problem” families, which were identified as those that repeatedly went to court

to argue over divorce issues, to develop new skills in dealing with their conflict.

Parents and children were court-ordered to attend the weekend workshop to learn

about strategies to cope with the grief that accompanies divorce, to avoid the

games that family members play, and to learn ways to communicate effectively

with an ex-spouse. Id. at 41. Attendance at the program became mandatory by

local court rule in 1986. Completion of the program is required before a final

divorce decree is awarded. Since 1986, several other counties in Kansas have

followed Johnson County’s lead in mandating attendance in the program. Id.

Id. at 46.

Id. at 41.

100

Id.

101

Id.

102

Id. (citing E. KUBLER-ROSS, ON DEATH AND DYING (1969)).

103

Id. at 46.

44 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

104

Petersen & Steinman, supra note 63, at 28.

105

Id. at 28-29.

106

Id. at 30. There is not an opportunity for questions or discussion; however, the

leaders are available before and after the seminar to address individual issues and

the handbook and resource directory handed out during registration provide

additional information and resources. Id. at 30, 32.

107

Id. at 31-34.

108

Id. at 32.

109

Id.

110

Id.

111

Id.

112

Id.

113

Id. (quoting JUDITH S. WALLERSTEIN & JOAN B. KELLY, SURVIVING THE BREAKUP:

HOW CHILDREN AND PARENTS COPE WITH DIVORCE (1980)).

114

Id.

115

Id. at 33.

116

Id. (quoting I. RICCI, MOM’S HOUSE, DAD’S HOUSE: MAKING SHARED CUSTODY WORK

(1981)).

117

Petersen & Steinman, supra note 63, at 36.

118

Id. at 37.

119

Id. 73% indicated that the seminar made them more aware of the children’s point

of view.

120

Id.

121

Id. at 37.

122

Jack Arbuthnot, Kevin M. Kramer, & Donald A. Gordon, Patterns of Relitigation

Following Divorce Education, 35 Fam. & Conc. Cts. Rev. 269 (1997).

123

Id. at 270.

124

Id. at 272-73.

125

Id. at 274.

126

Id. at 274-276.

127

Id. at 276.

128

Id. at 276-77.

129

Schepard, supra note 1, at 776.

130

Id.

131

Id.

132

See Arbuthnot, et al., supra note 122.

133

IdId.

134

Id.

135

Jessica Pearson & Nancy Thoennes, Mediating and Litigating Custody Disputes:

A Longitudinal Evaluation, 17 Fam. L. Q. 497, 499 (1984).

136

Id.

137

Id. at 499.

138

See Joan B. Kelly, A Decade of Divorce Mediation Research: Some Answers and

Questions, 34 Fam. & Conciliation Cts. Rev. 373, 378 (1996). [Hereinafter Kelly,

Mediation Research].

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 45

139

Id. at 379.

140

Pearson & Thoennes, supra note 135, at 499.

141

See Nancy S. Palmer & William D. Palmer, Family Mediation: Good for Clients,

Good for Lawyers, The Compleat Lawyer 32, 33 (Fall 1996).

142

Id.

143

Id.

144

Pearson & Thoennes, supra note 135, at 499.

145

Id.

146

Id.

147

Since mediation became mandatory in California, court-based education and

orientation programs have been implemented to maximize the value of the

mediation process. Pre-mediation orientation programs provide clients with

information about the legal process, the impact of divorce on children, and the

stages of divorce that a parent might anticipate, with the primary goal of making

the mediation process more effective. See Lehner, supra note 75, at 51.

148

Id. at 375.

149

Rita Henley Jensen, Divorce -- Mediation Style, A.B.A. J., Feb. 1997 at 55, 56.

150

Craig A. McEwen, Richard J. Maiman, and Lynn Mather, Lawyers, Mediation,

and the Management of Divorce Practice, 28 Law & Soc. Rev. 149, 152-53

(1994).

151

Md. Rule 9-205 c.(1).

152

Md. Rule 9-205 c.(2).

153

Kelly, Mediation Research, supra note 138, at 380.

154

Id. at 373.

155

Id. at 374.

156

Id.

157

Id. at 375.

158

Id.

159

Id. at 379 (citing H. Irving & M. Benjamin, An Evaluation of Process and Out-

come in a Private Family Mediation Service, 10 Mediation Quarterly 35 (1992);

Jessica Pearson & Nancy Thoennes, Reflections on a Decade of Research, in

Mediation Research: The Process and Effectiveness of Third Party Intervention

(K. Kressel, D. Pruitt & Assoc. eds., 1989)).

160

Kelly, Mediation Research, supra note 138, at 379.

161

Id.

162

Id.

163

Id.

164

Id. (citing Joan Kelly, Is Mediation Less Expensive? Comparison of Mediated and

Adversarial Divorce Processes, 8 Mediation Quarterly 15 (1991); Joan Kelly,

Developing and Implementing Post-Divorce Parenting Plans: Does the Forum

Make a Difference?, in NON-RESIDENTIAL PARENTING: NEW VISTAS IN FAMILY LIVING

136-155 (C.E. Depner & J.H. Brady eds., 1993)).

165

Kelly, Mediation Research, supra note 138, at 379.

166

Id. (citing Irving & Benjamin, supra note 159; Pearson & Thoennes, supra note

135).

46 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

167

Kelly, Mediation Research, supra note 138, at 380.

168

Id.

169

Id. at 377.

170

Id. at 378.

171

See Kelly, Mediation Research, supra note 138, at 378 (discussing studies).

172

Kelly, Mediation Research, supra note 138, at 378.

173

Id. (citations omitted).

174

Id. (citing Emery, supra note 13; Joan B. Kelly, Mediated and Adversarial

Divorce: Respondent's Perceptions of Their Processes and Outcomes, 24 Media-

tion Quarterly 71 (1989)).

175

Id. at 378-79.

176

Id. at 379.

177

Id. at 375.

178

Kelly, Divorce Mediation, supra note 138, at 379.

179

Id. at 376 (citing J. Walker, et al., MEDIATION: THE MAKING AND REMAKING OF

COOPERATIVE RELATIONSHIPS (1994)).

180

Id.

181

Id.

182

Id. at 376.

183

Id.

184

Id. (citing Joan B. Kelly, Parent Interaction After Divorce: Comparison of

Mediated and Adversarial Divorce Processes, 9 Behav. Sci. & L. 387 (1991);

Pearson & Thoennes, supra note 159).

185

Id. (citing Walker et al., supra note 179).

186

Kelly, Divorce Mediation, supra note 138, at 376.

187

Id.

188

Id.

189

Id.

190

See generally, Singer, supra note 60, at 1543-44. Whether joint custody serves

children's interests is a matter of debate, in both the academic literature and the

popular press.

191

Kelly, Divorce Mediation, supra note 138, at 377. (citing Pearson & Thoennes,

supra note 159).

192

Id. (citing Joan B. Kelly, Mediated and Adversarial Divorce Resolution Pro-

cesses: An Analysis of Post-Divorce Outcomes, 1990 Report for the Fund for

Research in Dispute Resolution, Corte Madera, Ca. (1990); Pearson & Thoennes,

supra note 159).

193

Id. (citing Kelly, supra note 192; Jessica Pearson, The Equity of Mediated Divorce

Agreements, 7 Mediation Quarterly 347 (1991)).

194

Such child-focused intervention programs are widespread. One school-based

model, for example, has been used in over 2,000 school districts and 100 mental

health centers. Grych & Fincham, supra note 32, at 438. This program was

195

Id.

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 47

196

It is thought that locating these programs in schools maximizes the number of

children who can participate in them and thus makes help available to many

children, especially those from low-income families, who might otherwise not

receive it. The school environment is also a familiar one for children, with

teachers and classmates providing a natural support network for them.

197

Grych & Fincham, supra note 32, at 448.

198

Neil Kalter, et al., School Based Developmental Facilitation Groups for Children

of Divorce: A Preventative Intervention, 54 Am. J. Orthopsychiatry 613, 614

(1984).

199

Id.

200

Id. at 616.

201

Id.

202

Id. at 621.

203

Id.

204

Id.

205

Id. at 622.

206

Id.

207

Grych & Fincham, supra note 32, at 438.

208

Id. (citing Neil Kalter et al., School-Based Support Groups for Children of

Divorce, in MARTIALLING SOCIAL SUPPORT: FORMATS, PROCESSES AND EFFECTS (B.H.

Gottlieb ed., 1988)).

209

Id.

210

Vicki Garvin et al., Children of Divorce: Predictors of Change Following Preven-

tive Intervention, 61 Am. J. Orthopsychiatry 438, 439 (1991).

211

Id.

212

Id.

213

Grych & Fincham, supra note 32, at 438 (citing A.L. Stolberg & K.M. Garrison,

Evaluating a Primary Program for Children of Divorce: The Divorce Adjustment

Project, 13 Am. J. Community Psychology 11 (1985)).

214

Id.

215

Id.

216

Id.

217

See JoAnne L. Pedro-Carroll & Emory L. Cowen, The Children of Divorce

Intervention Program: An Investigation of the Efficacy of a School-Based Preven-

tion Program, 53 J. Counseling and Clinical Psych. 603 (1985).

218

Id. at 605.

219

Id. at 608.

220

Id.

221

Id.

222

Id.

223

Linda J. Alpert-Gillis et al., The Children of Divorce Intervention Program:

Development, Implementation and Evaluation of a Program for Young Urban

Children, 57 J. of Consulting & Clinical Psychology 583, 584 (1984).

224

Id. at 586-87.

48 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

225

Id. at 586.

226

Id. at 587.

227

Id. at 588.

228

Kalter et al., supra note 198, at 613.

229

Id.

230

Trecia DiBias, Some Programs for Children, 34 Fam. & Conciliation Cts. Rev.

112, 114 (1996).

231

Id.

232

Id.

233

Id. at 115.

234

Rosemarie Bolen, Kids' Turn: Helping Kids Cope With Divorce, 31 Fam. &

Conciliation Cts. Rev. 248, 250 (1993).

235

Id.

236

Id. at 250-52.

237

Id. at 253.

238

DiBias, supra note 230, at 121.

239

Sherry Farmer & Diana Galaris, Support Groups for Children of Divorce, 21 Am.

J. Fam. Therapy, 40, 41 (1993).

240

Id.

241

Id.

242

Id. at 42.

243

Id.

244

Id. at 48.

245

Id.

246

Id.

247

Id.

248

Joe H. Brown, et al., Families in Transition: A Court-Mandated Divorce Adjust-

ment Program for Parents and Children, 45 Juv. & Fam. Ct. J. 27, 28 (1994).

249

Id. at 29.

250

Id. at 31.

251

Id.

252

Robert Tompkins, Parenting Plans: A Concept Whose Time Has Come, 33 Fam.

& Conciliation Cts. Review 286, 292 (1995).

253

Id.

254

Id.

255

Id. at 294.

256

Florida enacted the Shared Parental Responsibility Act in 1982. FL. STAT. §61.21.

Shortly thereafter, Maine enacted similar legislation. 19 ME. REV. STAT. ANN.

§752. These statutes changed the legal terminology of custody proceedings, but

did little else to change the manner in which custody cases were handled. Other

states also enacted laws encouraging or requiring parenting plans. For example,

Colorado allows both parties in joint custody proceedings to submit a plan to the

court for approval. The plan must address the parties’ arrangements regarding

such factors as the child’s emotional health and well being. The statute also

Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform 49

requires the court to formulate a plan if no plan is submitted or if the court does

not approve a submitted plan. COLO. REV. STAT. §14-10-123.5(3) (1987). Illinois

also requires parents in a joint custody case to submit a Joint Parenting Agreement

to the court detailing the parents’ responsibilities toward the child and specifying

the procedure for future disputes or changes in the agreement. ILL. REV. STAT.

Ch.40, §602.1 (1989). Massachusetts requires parents to submit a written plan to

the court setting forth details of their shared legal custody. MASS. GEN. L. CH. 208,

§31(1988). See generally, Jane W. Ellis, Plans, Protections, and Professional

Intervention: Innovations in Divorce Custody Reform and the Role of Legal

Professionals, 24 U. Mich. J. Law Reform 65, 70, n.10 (1990).

257

Tompkins, supra note 252, at 292-93.

258

Id. at 293.

259

Tompkins, supra note 252, at 292-93.

260

Id.

261

Id.

262

Id. at 294.

263

Id.

264

See, Ellis, supra note 256, at 94. These restrictions affect the spouse who has (1)

abandoned or neglected the child; (2) physically, sexually, or emotionally abused

the child; (3) committed serious acts of domestic violence against his/her spouse;

or (4) is living with someone who has engaged in this type of conduct. Id. at 92-

93 and 108. See also, OFFICE OF THE ADMIN. FOR THE COURTS, WASH. ST. JUDICIARY,

DISSOLUTION WITH CHILDREN: HOW TO COMPLETE THE PARENTING PLAN, II.

265

Ellis, supra note 256, at 168.

266

The results of this study have not yet been published. However, Dr. Dunne

discussed his results by telephone with Professor Jana Singer on July 2, 1997. See

also John Dunne, Wren Hudgins, and Julia Babcock, The Parenting Act After

Seven Years: What Are the Results? (unpublished conference paper, on file with

the authors).

267

This aspect of the Washington child support guidelines has since been changed.

268

Family courts have existed in Connecticut, Delaware, Hawaii, New York, Rhode

Island, and South Carolina for a number of years. New Jersey established the

Family Division of the Chancery Division of the Superior Court of New Jersey by

constitutional amendment in 1983; Kansas published a recommendation for

implementation of a family court system in 1993. In 1992, the Advisory Council

on Family Legal Needs of Low Income Persons issued a report recommending the

creation of a unified family court in Maryland. In 1993, the General Assembly

approved legislation authorizing the Chief Judge to examine the Circuit Courts

and to recommend the establishment of a Family Division in appropriate jurisdic-

tions.

269

See e.g. Family Division White Paper, Administrative Office of the Courts, New

Jersey Supreme Court.

270

The grant money is being used to provide technical assistance to these five

jurisdictions to aid in their development of a Unified Family Court.

50 Mitigating The Effects of Divorce on Children Through Family-Focused Court Reform

271

Md. Rule 9-205 b.

272

This concept is based on the model that the New Jersey Family Division has

adopted, which consists of five basic components: Division Managers Office,

Chambers and Court Room Support, Integrated Case Management Teams, Case

Reception, and Other Centralized Functions. "Other centralized functions"

include child placement review, juvenile conference committees, matrimonial

early settlement panels, supervised visitation, juvenile-family crisis intervention

units, and other special programs which are better managed on a centralized basis.

See Family Division White Paper, supra note 269, at 39.