What Can Be Done? A LOT!

The current practice of requiring "coparenting" almost universally is clearly not working and is not safe or effective for many parents or children. It's my opinion that despite the fact that it's not based on research and can even be dangerous, universal coparenting has become the standard because it "feels" right to people who are in the family court system. In divorces where both parents are mentally and emotionally stable, coparenting allows the children to experience the benefits of an intact family unit because it carries over the same parental involvement though the marriage relationship is ended. The assumption seems to be that if coparenting works for stable divorcing parents, it will work for unstable divorcing parents and confer the benefits of an intact home for families that were dysfunctional or abusive before the divorce. I think it also allows judges, custody evaluators, guardians ad litem, etc. to feel like they can't make a wrong answer in a custody case. If one parent is as good as the other, then it doesn't matter who gets primary custody because either parent is fine in this view. Of course, the reality is that if a marriage and family unit was dysfunctional or abusive before, coparenting just continues  the dysfunction and abuse, it doesn't solve it and the "one parent is as good as another" philosophy frequently places children with an abusive or unstable parent for lengthy periods. 

The good news is that this isn't some unsolvable problem. There are several reforms that can help our family courts protect children and parents better and most of these are not especially expensive and many won't even require tax payer money.

More  Use and Consideration of Psychological Evaluations

Any time a custody case goes to trial, each parent should be required to submit to a psychological evaluation for mood and personality disorders to be used in determining custody at trial. Fees for the psychological evaluation should be charged on a sliding scale based on income. If one parent shows a clear mental and emotional stability over the other, that parent should be given preference for physical and legal custody. If both parents are mentally and emotionally unstable, the court should order them to submit to treatment and place a parallel parenting plan and even designate a backup custodian for the children if both parents should fail to provide a stable environment. If both parents are mentally and emotionally stable, the court can order them to a co parenting class if they still have difficulty working together. Parents who have been diagnosed with serious mental instability should more oversight before they can file for more custody.

What this might look like:

Josh has a long history of unstable behavior. He has been unable to hold down a job for years and has frequent periods where he is very high energy to the point of not sleeping much and then plunges into deep depressions where he becomes suicidal and rarely gets out of bed. He will extravagantly praise, his wife, Brittany, and their children, and then quickly start berating them with little to no provocation. With their financial situation spiraling out of control and Josh's frequent tirades against Brittany and the children and Josh refusing to get help, Brittany files for divorce. Josh claims that Brittany is a threat to him and the children even though she has been the children's primary caretaker since birth and never contacts Josh without a reason, is generally civil to him and has no history of violence against anyone. He sends her long interrogating and harassing emails and messages. Brittany is concerned over Josh's erratic and controlling behavior and believes that the children are safer with her. Brittany and Josh both submit to court ordered psychological evaluations after they don't come up with a parenting plan in child custody recommending counseling. The evaluations show that Brittany is mentally and emotionally stable but that Josh has borderline personality disorder and bipolar disorder. Brittany gets full physical and legal custody of the children and Josh has 1st, 3rd and 4th weekends throughout the whole year and a weekly Wednesday visit from 9-5 during the summer. Josh and Brittany alternate first and second halves of Christmas, Thanksgiving, Spring and Fall breaks. Three or four day weekends go to whichever parent would have had them. The judge orders Josh to seek treatment for his psychiatric issues and to follow all treatment. After Josh has followed treatment consistently for a year, he may request to change custody to joint physical and/or joint legal. He must submit an endorsement from the doctor overseeing his treatment stating that he is fit to request a change in custody and an endorsement from a custody evaluator who has interviewed him four times over a period of a year at his home address. He must also present proof of a clean drug test taken within two weeks of the filing date of his petition (a judge may order more frequent tests if substance abuse has been a problem for a parent), and a form signed by someone in criminal records stating that he has not been arrested during the year long period. The endorsements do not mean that he is "cured" or that he is the better parent or that he will get more custody. It simply means that his treatment has progressed to a point where he might be able to handle more time or decision making with the children and can petition to receive more. If any of these items are not in place, he cannot petition for more custody.

Parents Must Provide Proof of Housing Accommodations and Income in Divorce Filing or Response

It is appalling that it takes more proof of address to apply for a library card than it takes to get custody of a child in a divorce. Many people would say that parents who are homeless or women leaving abusive relationships would be disadvantaged by this, though that doesn't have to be the case. (When I left my ex husband, the housing situation in the area I was living in was so constricted because of Airbnbs that I ended up having to move.) I think that courts take it for granted that people filing for divorce will be able to easily obtain housing, which is no longer the case anymore because of rising housing prices, families living apart from each other and other socioeconomic factors at the present time. However, the problem is also that many people with mental instability don't have stable enough finances or employment to obtain housing, which puts children at risk when they are with that parent for the majority of the time. Individuals with certain disorders like bipolar disorder, histrionic personality disorder, antisocial personality disorder, narcissistic personality disorder and borderline personality disorder often have trouble with employment and caring for themselves, meaning that they are more likely to have problems with finding or maintaining stable housing. Parents seeking custody of minor children should submit three months of proof of residential address and income along with their most recent tax return with their divorce filing or response. Every three months for the duration of the divorce, the parents should send in two proofs of residential address and two proofs of income. Parents should submit their tax return to the court annually until the divorce is finalized. If a parent cannot provide two proofs of residential address and income, then the parent may provide one, but it will be noted that the proof is incomplete. Parents who fail to file any proof of income or residential address will be regarded as having no income or residential address. If a parent wants to file any new order for change in custody, he or she should have to file their three months of residential address proof and their three months of income proof and their tax return for the previous year.

What this might look like:

Gwen and Bryan have a long history of problems in their marriage. Gwen behaves erratically and frequently cheats on Bryan. One day Gwen leaves Bryan, takes the kids and moves into a motel. She has been fired or quit from several jobs and is currently unemployed. When she files for divorce, she files her motel reservation as proof of address and submits her joint checking account statement and the pay stubs from her last job, even though she quit two months ago and only has four weekly pay stubs from the job. In his response, Bryan files the mortgage papers from their home, three months of utility bill proofs, their joint checking account pages and his pay stubs from the last three months at his job. 

Gwen believes that she should have full physical and legal custody and Bryan believes he should have full physical custody, and is open to joint legal custody. They can't reach an agreement in child custody recommending counseling. They go through the psychological evaluations and psychiatric assessments and the results show that Bryan has some anxiety issues, but is overall mentally and emotionally stable and that Gwen has borderline personality disorder. Bryan receives full physical custody and they have joint legal custody with Bryan having tie breaking authority. Gwen gets 1st, 3rd and 4th weekends and she and Bryan share holidays. For summer, the weekend schedule continues but Gwen gets Wednesdays from 9 AM to 6 PM each week as well. Gwen must provide proof of accommodations for the children (like reservation receipts or a witnessed affidavit from a relative that she will be staying there on the dates of her weekend) to Bryan over their co parenting app by 6 PM Thursday night if she wants to have the children over night during her weekends. If she can't provide proof, she can have the children from the end of school until 6 PM on Friday night and from 9 AM to 6 PM on Saturday and Sunday. Any holidays that she does not have proof of accommodations for will follow the 9 AM to 6PM schedule for each day of the holiday or break or from the end of school until 6 PM if she gets to pick the children up from school. 

It might also look like this:

Elizabeth leaves her abusive husband, Rodney, and takes their children with her. Without a job at first, she initially moves in with a friend for a month. During this time, she gets a job and starts working. She then starts living in a vacation rental for a couple of months. When she files for divorce, she submits a notarized statement from her friend stating the dates she was living there and the receipts from the vacation rental she stayed in. A couple of months later, she moves into an apartment. Because she has changed her address, she submits her proofs of her new residential address by submitting a copy of her rental contract and a copy of her first two water bills.

No joint custody in adjudicated domestic violence custody cases and restrictions on custody for adjudicated abusers

 I am going to be blunt and say that this should be a no-brainer. People who resort to abuse to get their way with others are not cooperative people and the body of research on personality disorders and divorce shows that people with certain personality disorders are more likely to resort to abusive behaviors to deal with the challenges in relationships (often resulting in divorce or relationship instability) and that many of these disorders are characterized by low empathy or a lack of empathy. These factors mean that co parenting will not be possible in these cases because one or both parents lack the ability to behave cooperatively and have empathy. While it's going to be impossible to ferret out every single abusive relationship (especially because many abusers use emotional tactics like manipulation that don't leave physical proof), at the very least joint custody of any kind should be ruled out in any divorce where domestic violence has been proven in court.

What this might look like

Jennifer and John have had a long history of domestic violence. After a particularly violent fight, Jennifer is able to get help and John is arrested and convicted of domestic violence related charges. They both have difficulty with employment. Jennifer has frequent mood swings and a history of short lived relationships, including some during her marriage to John. John has been violent towards Jennifer repeatedly and has a history of assault and battery convictions. Jennifer decides to leave John and takes their children with her. They both want full physical and legal custody of their children. Because of the domestic violence and John's history of assault and battery convictions, he cannot receive full physical, full legal, joint physical or joint legal custody, so their case doesn't go to mediation. John receives supervised visitation of the children for two hours on Saturdays and Sundays. Because of his history of violent behavior, the visits must take place at an accredited and supervised visitation center. The judge orders psychological evaluations for both of them. The evaluations show that Jennifer has borderline personality disorder and that John has antisocial personality disorder. They are both court ordered to treatment. Jennifer receives full physical and legal custody, but must adhere to her treatment regimen in order to keep it. She will be assigned a custody evaluator who will meet with her monthly for the first year she has custody. The custody evaluator also interviews and visits Jennifer's and John's family members to designate a backup custodian if Jennifer fails to adhere to the conditions of her custody order. Jennifer will undergo quarterly checks with the custody evaluator. If Jennifer fails a check, the back up custodian will receive temporary custody. She must meet the requirements for adhering to treatment, no arrests, and no substance abuse for a period of six months (2 quarterly checks) to regain custody. If she fails again to meet the requirements she will lose custody again. If she fails three checks, the temporary custodian can start the process to gain full legal custody of the children. Because of his history of violent behavior, John may only request a change to gain more custody after a period of five years wherein he will have to undergo treatment for his mental health problems, meet monthly with a custody evaluator during that five year period, pass 60 monthly drug tests and have no arrests for a five year period. If he violates any of these conditions the five year clock starts over again.

Standardized/certification training for judges, lawyers, mediators, social workers, guardians ad litem, custody evaluators and others who work with divorce and custody cases

People in these careers get training in laws and practices regarding custody, but there is no standardized, research or evidence based training required for them. And for all of its limitations, one of the problems that the 2012 Saunders et al. study very rightly noted was that there aren't any uniform standards for people who work with family cases in court. Without a firm grasp on the realities of contested custody cases and the people involved in them, these family court professionals often make decisions that perpetuate and condone abuse and even put children or parents at risk of harm. Trainings for how to deal with people and situations and not just the legal ins and outs isn't some kind of unheard of thing. The non-profit International Justice Mission conducts trainings for judges and court personnel in other countries to help them understand how the dynamics of abuse and trauma can affect legal cases related to sexual crimes and human trafficking. We can certainly run trainings like these in the United States. These trainings should cover topics like the psychology of abusers (male and female) and victims (male and female), research based information about domestic violence and abuse, mood and personality disorders and how these things affect families and relationships, as well as the advantages and disadvantages of different custody arrangements. These trainings should also include real life case studies of what can go wrong when joint custody or unsupervised custody arrangements are demanded by courts in cases where one or both parents is significantly mentally and emotionally unstable. People who work with family law cases need to understand that the risks are real and not just theoretical. The certifying board for these trainings should consist of professionals with extensive backgrounds dealing with abuse and domestic violence, mental health professionals who have an extensive background in personality and mood disorders, domestic violence and abuse, and psychiatrists and psychologists who have extensive experience treating patients with personality disorders and mood disorders, particularly bipolar disorder, borderline personality disorder, narcissistic personality disorder, histrionic personality disorder and antisocial personality disorder. (Yes, trainings and classes to deal with parents who have mental instability and are in domestic violence situations should be designed and approved by professionals who have an extensive background dealing with domestic violence and individuals who have mental instability.)

Limit court ordered co parenting classes to parents who do not have significant mental instability

Court ordered co parenting classes should never be used in place of treatment for mood and personality disorders. Co parenting classes should only be used when a psychological evaluation has shown that both parents are free from serious personality and mood disorders.

What this might look like:

Barbara and Jeff dated all through high school and got married in college. Since their marriage, they have started going in very different directions. Though neither was religious before, Barbara has become a very committed Wiccan and has become a dedicated vegan and pacifist. Jeff has returned to his Catholic roots after years away and wants their children to be baptized and receive communion, loves steak and has been a member of National Guard since his senior year of high school. Barbara and Jeff can't agree on anything anymore and decide to divorce. They go to child custody counseling and can't work out a plan. They undergo psychological evaluations. Barbara has already been in treatment for depression for several months prior and the psychological evaluation doesn't show any other mood disorders for either of them and neither parent has a personality disorder. They simply have very different values and haven't been willing to cooperate with each other. They are court ordered to co parenting classes (which meet state standards and are accredited and are taught by instructors who have undergone certification to teach accredited co parenting classes) to help them with coparenting.

Uniform and evidence based standards for co parenting classes 

As pointed out by Saunders et al. (2012), there are, generally speaking, no uniform standards for the people who work in family law. There are likewise no standards for court ordered coparenting classes, and as we have seen in a court ordered coparenting manual, there are no requirements that these classes teach a curriculum based on the mountain of research about abusers and domestic violence. When I looked at the website for the court ordered co parenting class that I took, it said that it was "award winning", not that it had any sort of certification or had any statistics about its results. And when I took the class,  I found that there was no basis in research and there were no statistics about the outcomes of the parents who were ordered to take the classes. The class and materials looked to be designed by a family counselor and a couple who divorced and ended up co parenting. Much of the materials in these classes focus on empathy for the children as a way to reach parents who are labeled "high conflict". The problem is that (as established in a substantial body of research) many parents in divorce or relationship break up have personality disorders and many of these personality disorders (specifically borderline personality disorder, narcissistic personality disorder and antisocial personality disorder) are characterized by low ability to feel empathy or an inability to feel empathy for others. In the class I attended, the mental health problems of the participants were on full display and the stories related to the class by the instructor indicated that many of the parents she had seen in these classes previously had significant mental instability. The instructor talked about a case where a twelve year old boy had committed suicide because of his father was arrested when his mother called the police on him for violating a restraining order at a baseball game and another case where a couple refused to agree to anything even through years of dragging each other to court and through mediation and co parenting classes. The class stopped frequently because parents kept monologuing about their problems or grandstanding to advise other parents (uninvited) in the middle of the class. (We were told the rules were that we were to keep ourselves on mute in the class unless asked to respond, but the instructor did not enforce this rule.) After hearing the story of the boy who took his own life, one mother said in a flat voice that it wasn't fair to put that kind of responsibility on parents because "we have so much going on". (Again, people with certain personality disorders have low or no empathy for others.) The class ran 10 minutes over because one man kept ranting about how his ex wife was taking too much money from him and the instructor wouldn't take control of the class and dismiss us. The instructor was very sincere in her desire to help parents overcome their differences for the good of their children and there were some couples who started to work together during the class and that was inspiring to see. But many of the parents in these classes that I saw were not able to demonstrate empathy or respect for their children or the other parent. Again, these kinds of people cannot be helped by one or two co parenting classes. They are exhibiting symptoms of mental instability and need mental health treatment.

Require data collection and reporting for all co parenting classes 

Again, the coparenting class I took just said that it was "award winning". There was no data or statistics about the class and its results. If the state is going to court order to people to do something, there should be statistics about how effective it is so that they can track the results and make alterations if necessary. If the health department were to start a new program or intervention to address a public health problem, they would likely be required to define the metrics for the program's success, track those metrics and report them. This does not seem to be the case for court ordered coparenting classes. If a coparenting class continually has low effectiveness, courts shouldn't be ordering parents to take it. This doesn't have to be very costly or time intensive either. Even sending out multiple surveys to parents who have taken these classes over a period of a few months would give us more information about the effectiveness of these classes than we have now.

More oversight of custody for parents who have high risk disorders like bipolar disorder and personality disorders 

Currently parents who display signs of mental instability are not followed in any depth. If these parents are going to be engaged in parenting the children and want more custody, they need to be followed by custody evaluators who have received uniform and research based training about custody and abuse and domestic violence. Custody evaluators should be interviewing and doing home visits with these parents at least quarterly if the parent wants to request joint or sole custody.