Judges' Reliance on Psychological, Sociological, and Legal Variables in Contested Custody Decisions

Abstract

Judges' use of case specific data in determining child custody arrangements was examined. Information collected on 60 contested initial disposition or disposition modification cases was used to model judicial decision-making. The sample was not representative of the full population of divorcing families in that it was disproportionately comprised of high conflict cases in which there were few unequivocally safe placement options.Our results indicated that judges generally followed the legal statutes, attended to the nature of family relationships, and did not rely on a general preference for one parent. Moreover, they demonstrated a strong reliance on the impressions and recommendations of Erik Sorensen, PhD, is on the staff,

Judging the Best Interests of the Child: Judges' Accounts of the Tender Years Doctrine

“…Fineman (1991, 1995) dissents from this view, arguing that instead of equal treatment, feminist legal scholars should fight for result equality to ensure that the outcomes of the law are equal. While these debates rage over the nature of the custody statute, other scholars have examined how judges implement the gender‐neutral best interests policy (Girdner 1986; Pearson & Ring 1983; Pearson, Munson, & Thoennes 1982; Santilli & Roberts 1990; Sorensen et al 1997). However, the findings of these studies are equivocal, with some studies finding that judges use gender‐based criteria in spite of the gender‐neutral statute (e.g., Pearson & Ring 1983), and other studies concluding that a sense of gender equality and individual rights has supplanted gender‐based legal reasoning (e.g., Girdner 1986).…”

Influence of Child and Family Factors on Judicial Decisions in Contested Custody Cases*

“…Although the Arizona statute provides judges with factors to consider in addition to those listed in the best interests standard, there are no guidelines offered in the Arizona statute—or, for that matter, in the best interests standard—for applying any of these criteria to specific cases. Indeed, the primary complaint regarding the best interests standard lies in its vagueness, which critics argue allows judges to impose their own biases and conceptions of children and family on the decision‐making process (Skolnick, 1998; Sorensen et al, 1997; Stamps et al, 1997). For example, judges are directed to consider the “wishes of the child as to the custodian.” However, the statute provides no guidelines for determining at what age a child's wishes should be considered.…”

“…Limited research assessing the factors or criteria that judges consider most important in determining custody arrangements (e.g., Felner, Terre, Farber, Primavera, & Bishop, 1985; Kunin, Ebbesen, & Konecni, 1992; Lowery, 1981; Sorensen et al, 1997) implies that judges do take child and family factors into account when making custody decisions. For example, in an attempt to determine whether judges make use of information that the psychological literature has suggested to be predictive of children's psychological adjustment following divorce, Sorensen et al (1997) examined case‐specific data provided in reports prepared for the Florida courts by Guardians ad Litem (GALs; trained volunteers or professionals who provide the court with information about the families and make recommendations for awards of custody). These investigators assessed the extent to which judges attend to the information provided by GALs relative to other criteria outlined in statutory guidelines.…”

“…Because the quality of parent–child relationships has been suggested to predict children's postdivorce adjustment (e.g., Amato & Keith, 1991; Forehand et al, 1991; Hetherington, Bridges, & Insabella, 1998), judges' apparent attention to this information coincides with what the literature would suggest is one of the most important factors to consider in the determination of custody arrangements. However, because Sorensen et al (1997) did not gather information directly from judges, caution must be heeded in assuming which factors most influenced these custody decisions.…”

“…As judges are increasingly being called on to make decisions that have a dramatic impact on the lives of many children, researchers have begun to study judicial decision making in contested custody cases. Limited data suggest that legal guidelines regarding custody arrangements are the most influential criterion in the decision‐making process (Sorensen et al, 1997). However, the vagueness of the best interests standard provides judges considerable latitude for determining custody arrangements.…”