Abstract
Finding a good match between legal proceedings and the problems they will be used to address, is by no means a new challenge. The complexity of custody disputes—the variations in underlying factors, the child’s individual needs, experience, and views, and the health and life circumstances of the parents—can make the challenge seem overwhelming. Therefore, rather than diving into the details of the law applicable to custody disputes, the present anthology seeks to address broader perspectives, and look for new ways forward, perhaps beyond those set out in current laws.
You have full access to this open access chapter, Download chapter PDF
Similar content being viewed by others
10.1 Introduction
Finding a good match between legal proceedings and the problems they will be used to address, is by no means a new challenge.Footnote 1 The complexity of custody disputes—the variations in underlying factors, the child’s individual needs, experience, and views, and the health and life circumstances of the parents—can make the challenge seem overwhelming. Therefore, rather than diving into the details of the law applicable to custody disputes, the present anthology seeks to address broader perspectives, and look for new ways forward, perhaps beyond those set out in current laws.
Specifically, the contributions to this edited volume have explored how legal proceedings, in and out-of-court, can be matched to the complex problems underlying custody disputes, or resulting from legal proceedings aimed at solving them. In fulfilling its aim, this anthology illuminates aspects of both, the reality facing children whose parents are in conflict, and legal responses to family conflicts. The varying chapters illustrate that the topic has many faces, but as the pieces are brought together, it is possible to draw several conclusions.
The first such conclusion is that the specific nature and the underlying causes of custody conflicts are often not sufficiently considered in legal proceedings (further addressed in Sect. 10.2). In various ways, the chapters of Norlén, Eriksson, Rejmer, Singer, and Barton, each emphasize how parent–child relationships, children’s health, risk factors, and other aspects that could be described as characterizing custody conflicts, must be understood and considered in legal proceedings, whether they take place in or out-of-court.Footnote 2
The second conclusion is that there are tensions between a private-law understanding of custody disputes and an understanding of custody disputes that relies on the best interests of the child as a starting point (Sect. 10.3). Rejmer and Singer, in particular, point out the historical development of the Swedish law on custody, and the shift that has taken place with regard to seeing the child as a rights-bearer. Singer’s mapping of the stepwise development of the law helps us to understand current challenges.Footnote 3 These and other contributions suggest that tensions exist between the legal structures which have been conserved, despite numerous legislative amendments, and the more recently introduced legal objectives.
The third conclusion is that challenges associated with guaranteeing the child’s own procedural rights, particularly the right to participation, persist (Sect. 10.4). Respecting the child’s right to participation is a means of ensuring that the child is treated as a rights-bearer and active agent, with thoughts and ideas worthy of consideration in decision-making. However, several of the authors contributing to the anthology, point out that the implementation of the right to participation is lacking in several respects.
With the fourth and final conclusion, we draw from the discussions in the preceding chapters, that fragmentation shapes the law governing custody disputes and proceedings in various ways (Sect. 10.5). One way in which fragmentation shapes the law lies in how and from where it derives its normative content. Today, the best interests of the child is an international legal standard, applicable in custody disputes, but it has been criticized for being vague and difficult to apply. At the same time, national laws define the more precise content of the best interests of the child, both with respect to the substantive and procedural law. The normative content of the law is thus defined at several levels of government. It can be argued that the procedural law structures and other legal responses in place to tackle custody disputes are themselves fragmented: they take very different shapes and involve a wide range of agencies and courts. In this legal landscape—which spans several areas of law and multiple agencies with different mandates and investigational powers—the principle of the best interests of the child requires an individualized and knowledge-based assessment, which necessitates competence from several disciplines and professionals. In the following, we draw on the findings of the previous chapters of the anthology and elaborate on the above-outlined conclusions.
10.2 The Importance of Considering the Nature of Custody Conflicts in Legal Proceedings In and Out-of-Court
When considering how to implement legal proceedings that minimize the negative effects of custody disputes and optimize positive outcomes for children and their families, a basic starting point is to examine the nature of the conflicts underlying such disputes. This may appear evident, and perhaps even a superfluous point to make, but as the contributions to this edited volume clearly illustrate, it is in fact a challenging and complex task. As Barton describes, the substance matter of a custody dispute has an intimate and emotional character. It affects the parties’ most important personal relations—relations that will continue long after the parties leave court.Footnote 4 Norlén and Singer point out that we know too little about the needs of the parents and their children and the problems they have.Footnote 5 Nevertheless, Norlén gives an overview of the knowledge that is available. Several factors characterize families that are going through separations and custody disputes. One such factor is emotional stress and parental worries about their and their children’s future. Another factor is the negative effects that custody disputes have on the child’s life and health.Footnote 6 There is also an overrepresentation of underlying causes, such as domestic violence, neglect, or abuse, and a great deal of underlying problems such as health concerns, unemployment, and substance abuse.Footnote 7
The idea of adapting procedural mechanisms to the substantive-law context in which they will be applied is not new.Footnote 8 Rules of procedure affect how substantive law is applied, and therefore the extent to which it succeeds in reaching its objectives.Footnote 9 A very basic example of how procedural law has been designed to reflect substantive law, is private-law proceedings. In short, a traditional understanding of a commercial private-law dispute is that the primary aim of the dispute is to resolve a conflict between the parties. Since substantive law leaves it to the individual to freely enter into a contract, or otherwise reach an agreement, procedural law should also not interfere. In Swedish civil procedure, the basic point of departure is that the claims of the parties define the boundaries of the procedure, and the court has no mandate to investigate the substance matter of the case on its own motion; rather, the judge should remain passive.Footnote 10 In other words, the court has no duty to decide in accordance with what it considers is in the best interests of the parties or even a third party. This also explains why solving private-law issues out of court has a long tradition, especially in commercial-law disputes; the benefits are numerous, such as avoiding expensive legal proceedings and negative publicity or preserving a business relation.Footnote 11
Similarly, as illustrated by Rejmer and Singer, Barlow, Hunter, and Ewing as well as Nylund, adjustments in existing private-law proceedings have been made to handle the specific character of custody disputes.Footnote 12 However, such amendments have often been made without previous research or follow-up evaluation. It seems clear that procedural mechanisms, whether in or out-of-court, remain insufficiently geared to the situations in which they are to be applied.
Both in and out-of-court custody proceedings aim to achieve an outcome according to the best interests of the child. However, this assessment is individual and must take all aspects of the child’s situation into account. The variations of underlying problems and individual circumstances related to the child and his or her parents, require the availability of a variety of approaches and procedures. The importance of having thorough knowledge about the needs of parents and children in custody disputes, in order to develop efficient dispute resolution models, is echoed among the authors of the present anthology.
In some cases, in-court proceedings could be the most fitting way of handling the dispute.Footnote 13 Where there are indications of domestic violence, abuse, or other risk factors, these aspects must be properly investigated in a manner that fulfils due-process requirements. In such cases, the court decision might limit parental rights and fundamental rights to privacy and family. As pointed out by Barlow, Hunter, and Ewing, power imbalances between parents resulting from violence or threats must also be investigated and considered.Footnote 14 To be able to address the custody conflict in question, the court must have a nuanced picture of the specificities of the individual case.
In addition, where out-of-court dispute resolution appears to be an option, the nature of the conflict must be properly considered to be able to navigate between different procedures and other approaches that are available. As argued by Nylund, it is crucial to examine whether parents need therapeutic treatment or other types of support, rather than mediation, in the individual case.Footnote 15 Different approaches and procedures might be suitable at different points in time, or it might be helpful to combine several approaches. A conscious and careful match between a specific approach or procedure and the nature of the conflict in the individual case, could potentially reduce negative effects of custody disputes on the parents and children involved.
10.3 Tensions Between a Private-Law Understanding of Custody Disputes and an Understanding That Relies on the Best Interests of the Child as a Starting Point
In line with the shift to viewing children as individuals with their own rights, the principle of the best interests of the child is the standard according to which custody disputes must be decided.Footnote 16 The principle includes several aspects: acknowledging that the child’s right to both parents, right to protection, and right to participation are paramount in custody disputes.Footnote 17 Applying the principle of the best interests of the child requires that both short- and long-term consequences for the child are considered, and a qualitative and individualized investigation of all relevant elements.Footnote 18 Against the backdrop of the great public interests at stake, one could actually find it surprising that custody, residence, and contact for children are generally matters governed by private law and that disputes are resolved under rules of civil procedure.Footnote 19
Much as a result of the shift in how children are perceived, custody disputes can now be described as ‘atypical’ private-law procedures. Unlike other private-law proceedings, the main aim of a court proceeding concerning custody, is not to decide what is proven according to the claims of the parties or to settle the dispute between the parties, but to reach an outcome that is in the best interests of the child.Footnote 20 Arguably, this standard, reflective as it is of a general public interest, adds a public-law dimension to the dispute. This in turn motivates a court proceeding that is not strictly accusatory, but one that has inquisitory traits, such as the judge’s extended responsibility for investigating and even deciding beyond the claims of the parties/parents.Footnote 21 Ultimately, this can mean investigative measures that go far beyond what would otherwise be expected from a judge in private-law disputes. Furthermore, an outcome according to the best interests of the child is a prospective assessment and therefore differs from retrospective assessments that otherwise dominate private-law proceedings.Footnote 22
Contradictory court proceedings, such as those applicable to private-law disputes, come with certain consequences. First, as brought to the fore by both Rejmer and Singer, the applicant must prove the claim, which in custody disputes means that the parents must show that the respondent—the other parent—is unfit.Footnote 23 Consequently, the court proceeding lacks incentives for parents to be open about their problems. The dichotomic character of the ruling—one party wins and the other loses—also risks not only prolonging the conflict but intensifying and deepening it. It also involves a risk of working against a transparent and robust investigation.Footnote 24 In addition to this, Rejmer argues that, unlike parties in other private-law disputes, parents in custody disputes most often do not fight over resources that can be divided between them. The contested matter typically relates to a question of values concerning a parent’s ability or suitability. Such deeply personal and emotional matters conflict with the basic idea behind private-law disputes, according to Rejmer.Footnote 25
In Nordic countries, co-parenting is put forward as an aim of family law.Footnote 26 The aim of co-parenting when parents live apart interacts well with the child’s right to both parents. This aim is mirrored by procedures seeking to keep parents out of court, and promoting agreements between them, typically regarding co-parenting and shared custody.Footnote 27 However, doing so places significant demands on parents’ negotiation skills and capacity for cooperation, and requires society to provide adequate support. But if this support is lacking, then both legislation where co-parenting is the goal, and social and legal institutions’ approaches, risk worsening the situation by leaving the family and the child without adequate support or imposing a decision that is not in the child’s best interests.Footnote 28
In Nordic countries, but also in England and Wales, resolving parents’ conflicts out of court seems to be a shared ideal and generally considered to be in the best interests of the child.Footnote 29 However, also with respect to out-of-court dispute resolution, the understanding of custody disputes as private-law disputes appears to involve certain risks. First, out-of-court dispute resolution runs the risk of being seen as ‘the good’ method for dispute resolution, if it is simply contrasted with (dysfunctional) court proceedings, because of its non-adversarial nature that reduces conflict and restores autonomy to the parties.Footnote 30 As already argued above in Sect. 10.2, court proceedings are the preferable means of resolving a dispute where there are indications of violence, abuse, or other risk factors. Second, it is worth considering that out-of-court dispute resolution mechanisms were often originally developed for commercial legal disputes, that is, private-law disputes of a very different nature than custody disputes. Most out-of-court dispute resolution models are primarily constructed to handle problem-solving with two rational parties, possessing good parenting capacity and the ability to agree on outcomes that are in the best interests of the child.Footnote 31 Considering the deeply intimate, personal emotional nature of custody conflicts and the causes underlying them, to assume rationality, negotiating skills, and an ability to agree, might be expecting too much of parents.Footnote 32 At worst, the ambition to reach an amicable settlement might be in direct conflict with the best interests of the child.
Mediation is the most established form of out-of-court procedure in the context of custody disputes. It is designed to allow parties to reach an amicable settlement of the dispute with the assistance of a third person. The mediator has no authority to impose a solution upon the parties, and the process lacks a system for gathering information and for enabling the parties to argue their cases. In other words, mediation differs sharply from the inquisitory court proceeding. In contrast to the judge in a court proceeding, the mediator lacks a mandate to investigate the case or go beyond what the parties agree on; suggestions by the mediator might well be based on erroneous assumptions.Footnote 33 A dispute resolution model based on a drive to reach an agreement can result in decisions that are neither sustainable, nor in the best interests of the child. If the parents are incapable of reaching an agreement that is in the best interests of the child, then a mediation proceeding does not fit. This dilemma has not always been taken into consideration during the development of legislation or out-of-court models, with the consequence that out-of-court dispute resolution has not been as effective as expected.Footnote 34 Access to alternative methods, of a more or less therapeutic character, led by a lawyer, a therapist, or a social worker, could be a solution when choosing a proceeding. Doing this, however, would require a diagnostic tool to identify the nature of the problem.
However attractive out-of-court dispute resolution might seem from the perspective of the child’s right to both parents, it is crucial that risk factors are not left unidentified. Similarly, although private-law experiences of out-of-court dispute resolution provide valuable insights that have informed the emergence of out-of-court solutions in the context of custody disputes, it is important not to forget that custody disputes have a public-law dimension that commercial private-law disputes typically lack. The will to promote an agreement between the parties should not be allowed to overshadow the best interests of the child.
There are challenges with the out-of-court resolutions, such as, whether and how the child should be included in the proceeding.Footnote 35 This point will be addressed further in the next section.
10.4 Ensuring the Right to Participation Remains a Challenge
One understanding about the introduction of the CRC, is that it reflects a shift towards increasingly recognizing children as autonomous individuals and rights holders.Footnote 36 The right to participation, enshrined in Article 12 CRC, is one means by which the respect for the child as an active agent can be ensured.Footnote 37 Furthermore, according to the principle of the best interests of the child, state parties are obliged to introduce means of hearing the child and that their view is given due weight in accordance to the child’s age and maturity.Footnote 38
Several chapters of the present anthology show that the implementation of the right to participation presents challenges in the context of custody disputes, both in and out-of-court.Footnote 39 Even if children are increasingly being heard in custody disputes in Sweden and other Nordic countries, several studies show that children are not always heard, or their view has not informed the decision.Footnote 40 For example, there is research that indicates the child’s view is not given weight in the decision if it doesn’t coincide with the aim of a close contact with both parents.Footnote 41 There are several reasons why children are not heard, or why their views are not given consideration in custody disputes. Judges or other decision-makers might seek to avoid the child’s exposure to the parents’ conflict, undue influence from one parent over the child, or a situation where the child feels pressure to choose one parent over the other.Footnote 42 Studies show, however, that children want to be heard and taken seriously in custody disputes, even if they do not always want to decide the outcome.Footnote 43 As Eriksson points out, the desire to have a say in a custody conflict seems even stronger among children who have experienced violence.Footnote 44 The challenges with respect to guaranteeing the right to participation could be the reason why the Committee of the Rights of the Child argues in favour of independent legal representation for the child in relation to the child’s custodian, when a potential conflict of interest exists between the child and their parents.Footnote 45
So far, child participation in out-of-court-proceedings has been addressed in research only to a limited extent. Indeed, ensuring the right to participation seems to be especially challenging in mediation, and the child’s view is rarely reflected in the decision.Footnote 46 One explanation for this could be that an agreement between the parents is presumed to be in the best interests of the child; therefore, including the child’s view is not necessary. At other times, involved parties may believe that excluding the child’s view protects the child from unnecessary investigative measures.Footnote 47 This, however, conflicts with Article 12 CRC. It also seems to conflict with an understanding of the child as a person able to comprehend and process the complex situation.Footnote 48 On top of that, as shown in research, many children would like to be consulted both in custody disputes, and out-of-court family dispute resolution. Inclusion (where appropriate and safe) can have a positive effect on children’s wellbeing.Footnote 49 Furthermore, a high degree of participation can contribute to a more sustainable outcome.Footnote 50 The child’s age does have implications, but even if children might not always have the capacity to grasp complex situations, they have the right and are often able to contribute thoughts, opinions, and ideas about how their everyday life should be arranged.Footnote 51
One possible explanation for the difficulties of implementing the child’s right to participation, is that this carries with it a childhood image not yet fully reflected in the national private law applicable to custody disputes. Further, the procedural-law consequences of understanding the child as a person with thoughts and ideas worth considering in decision-making does not yet seem to have taken a clear and tangible shape. If this is indeed the case, it is a criticism that is similar to some of the findings presented in Sect. 10.2, such as that of Rejmer, suggesting that current procedural-law settings are not sufficiently adapted to the nature of custody conflicts—rather, they suit more typical private-law disputes.
Children’s right to participate raises specific demands on any legal proceeding, in or out-of-court, which deal with parents’ conflicts regarding children. In addition, the child’s experiences and thoughts about alternative outcomes are crucial pieces of information for assessing what is in the best interests of the child; and are noted as a requirement for fulfilling the child’s substantive right according to Articles 3 and 12 CRC.Footnote 52 The legal proceeding, therefore, must balance the interests in protecting the child from being drawn into their parents’ conflict, while giving the child the opportunity to express their view and influence the decision. One concrete way of facilitating such a balancing of interests is to develop protocols for interviewing the child.Footnote 53
10.5 Fragmentation Shapes the Law Governing Custody Disputes and Proceedings
The fourth conclusion we draw from the discussions in the foregoing chapters, builds on themes that are less articulated and more difficult to grasp, yet nevertheless are reflected in the contributions to the present work: fragmentation shapes the law governing custody disputes and proceedings. First, the law governing custody disputes can itself be described as fragmented, in the sense that it is derived from both international law and national law. It involves complex factual assessments that sometimes require expert knowledge from other authorities. Second, the law and legal decision-making processes that come into play when parents are in conflict, can be described as fragmented in the sense that they involve various branches of law (for example, family law, social law, procedural law, and public law) and multiple agencies and courts. These two aspects of fragmentation are discussed below.
The first aspect of fragmentation relates to the structure of the law applicable to custody disputes. The principle of the best interests of the child is now the international standard applicable in custody proceedings at national level. Due to its open-ended, vague, and flexible character, the standard leaves scope for implementation and interpretation. Its more precise normative content is derived from legal sources at different levels of government.
The principle of the best interests of the child is not only a rights-based substantive principle but also a rule of procedure. The Committee on the Rights of the Child does not elaborate on this aspect of the principle in custody disputes, but states that applying the principle requires a qualitative and individualized investigation of all relevant elements and, if possible, by a multi-professional team, and includes the child’s own view.Footnote 54 The principle is therefore an individualized and knowledge-based assessment that requires information about the individual child.Footnote 55 The Committee emphasizes the importance of research when assessing what is in the best interests of younger children, and giving older children influence in the decision.Footnote 56
The vagueness of the principle of the best interests of the child has been criticized for not giving enough guidance with respect to how it should be applied in individual cases, and for leaving scope for a paternalistic approach.Footnote 57 As a consequence of the indeterminate meaning of the principle, the line between ideological aspects and a knowledge-based assessment of a situation is at risk of being blurred.Footnote 58 Available research, and knowledge of what is in the best interests of the child in terms of custody, residence, and contact, can be both complex and confusing. The variations in underlying factors, the child’s individual needs, experience, and views, and the health and life circumstances of the parents can be manifold.Footnote 59 The more vague the aim of the substantive law, combined with the complexity of the factors that come into play in the individual case, the greater the effort needed to develop proceedings for how to achieve the aim of the law. As a result, assessing the best interest can require competence from several disciplines and professionals. This brings us to the second aspect of fragmentation in the context of custody disputes and proceedings.
The need for support and protection when parents are in conflict can come in different forms. Due to the complexity of problems underlying custody conflicts, the legal responses to them take different shapes. In Nordic countries, the law also allocates responsibility to various agencies and courts, in such a way that parents and children may think that the support offered is fragmented. The Committee of the Rights of the Child states that when the substance matter concerns physical or psychological abuse from a parent, any judicial involvement should be coordinated and based on an integrated approach across sectors, facilitating access to the full range of caregiving and protection services available.Footnote 60
In Nordic countries, child protection is normally regulated in the field of social law and handled by child protection agencies.Footnote 61 In custody disputes where the situation implies a risk to the child—typically high-conflict cases where there are indications of violence or abuse—legislation in several areas of law is supposed to interact, ensuring protection of the child. In the Swedish example, this means that, whereas family law regulates custody, residence, and contact, social law is intended to ensure the child’s right to protection and support. It has been pointed out, that the legislation and allocation of administrative responsibility regarding family-law matters and child protection are fragmented and uncoordinated.Footnote 62 The consequence is, not only that the definition of violence, abuse, and maltreatment, the standard of proof, and the investigative tools vary, but that the child can be subjected to several investigations with different aims that subsequently lead to different outcomes.Footnote 63 From a strictly legal point of view, application of the law may be technically correct, but from a child-oriented perspective, the outcomes can be confusing and unclear, and in the worst case, they can put the child at risk. Risk assessment concerning a child’s situation in their family also places stringent requirements on investigative tools to obtain sufficient information, expertise to assess the child’s situation, and means of fulfilling the child’s need for protection and support. In Sweden, this is normally the responsibility of the social services, who have the legal means to investigate, give support, and if needed, intervene in the life of the child or the family. Different definitions of violence and risk in the different legal contexts, as well as different investigative legal tools and methods, can lead to outcomes and parallel processes that are not only confusing for parents and children, but also affect the child’s rights to protection.Footnote 64 Eriksson has emphasized the need for coordination and softening of legal and organizational bonds between these proceedings.Footnote 65
Fragmentation in law and agency responsibility has an impact on the preventive out-of-court resolution models. Eriksson has emphasized the need for coordination and softening of legal and organizational bonds between social law and family law in order to adequately meet the needs of children and their families.Footnote 66 Similarly, Nylund has underlined the importance of differentiating between various out-of-court resolution models, to adjust the services to the needs of the individual family, and to provide processes and outcomes that are in the best interests of the child.Footnote 67 Enhanced collaboration between responsible social service agencies and courts involved could make this possible.
10.6 Final Words: Beyond the Horizon
Matching proceedings to problems in custody disputes is a complex endeavour. This anthology represents one step towards broadening the perspectives on the issue. A lot remains to be said and done. As the contributions to the volume show, further research and development, concerning both the problem underlying proceedings, and how new models work out in practice, is necessary. The needs of children and their parents will not adapt to the proceedings. Rather, procedural law must be adapted and institutional boundaries overcome, to meet their needs. Any reform, whether it relates to in or out-of-court proceedings, must be followed up and evaluated. Such work must integrate all the relevant disciplines and actors, avoiding one-sided and unsupported approaches. Coordination—both in terms of knowledge, professional skills, and legal fields—can foster individualized, proactive solutions, more likely to benefit the best interests of the child. As a scholar, there is a risk of reproducing existing arguments and following established patterns, even when aiming to reach beyond them. We would like to encourage further study on how proceedings can be matched to problems in custody proceedings, which—no matter the discipline—approaches the issue itself as both historically created and complex in the sense described in this final chapter, and illustrated throughout this book.
Notes
- 1.
Several contributions to the present edited volume point to the repeated efforts by legislatures to ensure the best interests of the child in custody disputes. See for example, Anna Singer ‘Out-of-court Custody Dispute Resolution in Sweden—A Journey Without Destination’; Anna Nylund ‘Scandinavian Family Mediation: Towards a System of Differentiated Services?’; Anne Barlow, Rosemary Hunter, and Jan Ewing ‘Mapping Paths to Family Justice: Resolving Family Disputes Involving Children in Neoliberal Times’, all three in Anna Kaldal, Agnes Hellner, and Titti Mattsson (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023).
- 2.
Anna Norlén, ‘Children’s health matters in custody conflicts—What do we know?’; ‘Annika Rejmer, Custody disputes from a socio-legal perspective’; Maria Eriksson, ‘Children’s participation and perspectives in family disputes’, all three in Anna Kaldal, Agnes Hellner and Titti Mattsson (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023); Singer (n 1) and Thomas D Barton, ‘Challenges when family conflicts meet the law—A proactive approach’ in Anna Kaldal, Agnes Hellner, and Titti Mattsson (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023).
- 3.
Singer (n 1).
- 4.
Barton (n 2).
- 5.
Norlén (n 2); Singer (n 1).
- 6.
Søren Sander, Jenna Marie Strizzi, Camilla S Øverup, Ana Cipric and Gert Martin Hald, ‘When Love Hurts—Mental and Physical Health Among Recently Divorced Danes’ (2020) 11 Frontiers in Psychology; Maria Eriksson ‘Children’s Participation and Perspectives in Family Disputes’ in Anna Kaldal, Agnes Hellner and Titti Mattsson (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023).
- 7.
Annika Rejmer ‘Custody Disputes from a Socio-legal Perspective’ in Anna Kaldal, Agnes Hellner and Titti Mattsson (eds) Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023); Eriksson (n 6).
- 8.
Per Henrik Lindblom’Progressive Procedure. The Courtroom Process and Societal Development’ in Per Henrik Lindblom (ed) Progressive Procedure Twelve Essays 1985–2015 (Iustus 2017) 17, 20.
- 9.
Per Henrik Lindblom ‘Processen—bara en formsak?’ in Per Henrik Lindblom (ed) Studier i processrätt (Norstedts juridik 1993) 17, 23.
- 10.
Swedish Judicial Code [Rättegångsbalken] Chapter 17 Section 3.
- 11.
Julian D M Lew, Loukas A Mistelis and Stefan M Kröll, ‘Arbitration as a Dispute Settlement Mechanism’ in Julian D M Lew, Loukas A Mistelis and Stefan M Kröll (eds), Comparative International Commercial Arbitration (Kluwer Law International 2003). See also Barton (n 2).
- 12.
Singer (n 1); Rejmer (n 7).
- 13.
Barlow, Hunter and Ewing (n 1).
- 14.
Barlow, Hunter and Ewing (n 1).
- 15.
Nylund (n 1).
- 16.
According to the Committee on the Rights of the Child (CRC), General Comment no. 14 on the Right of the Child to have his or her Best Interests Taken as a Primary Consideration (art. 3, para. 1) (1 February 2013) CRC/C/GC/14, the principle is a dynamic concept that requires an assessment appropriate to the specific context. See for example, Michael Freeman, ‘Article 3. The Best Interests of the Child’ in André Alen, Johan Vande Lanotte, Eugeen Verhellen, Fiona Ang, Eva Berghmans and Mieke Verheyde (eds), A Commentary on the United Nations Convention on the Rights of the Child (Brill/Nijhoff 2007); Wouter Vandenhole, Gamze Erdem Türkelli, and Sara Lembrechts, Children’s Rights: A Commentary on the Convention on the Rights of the Child and Its Protocols (EE 2019) 31. Interpretating the substantive meaning of the best interests of the child, when applied, is described from two (sometimes overlapping) perspectives; one when the best interests of the child is balanced (weight) with another interest (another child, group, and so on), or the best outcome regarding the individual child. See, for example, John Eekelaar, ‘The Role of the Best Interests Principle in Decisions Affecting Children and Decisions about Children’ (2015) 23(1) The International Journal of Children’s Rights 3–26. The latter meaning is normally the case in custody disputes, where the best interest of the child prevails other interests, such as the parents’ interest.
- 17.
In its General Comment no. 14 (n 16) para. 67, the Committee states that the best interests of the individual child be the sole criterion when determining parental responsibility, taking into consideration the child’s right to maintain his or her relationship and that shared parental responsibilities are generally in the child’s best interest. There are several articles that address the child’s relation to his or her parents, such as Article 5 addressing the child’s family’s responsibility for the child, Article 9 preventing the child from separation from his or her parents unless it is necessary for the best interest of the child, and Article 18 stating that parents have common responsibilities for the child. According to the Committee the interpretation of the best interests of the child as a substantive right, includes the child’s rights according to the Convention as a whole. General Comment no. 14, para. 4. The articles in the convention are sometimes divided into three themes: the right to provision, protection, and participation (the three Ps). The three Ps are themes under which the articles of the conventions can be subsumed. See, for example, Michael Freeman, ‘The future of children’s rights’ (2000) 14(4) Children & Society 277–293; David Reynaert, Maria Bouverne-de-Bie and Stijn Vandevelde, ‘A review of children’s rights literature since the adoption of the United Nations Convention on the Rights of the Child’ (2009) 16(4) Childhood 518–534.
- 18.
CRC, General comment no. 14 (n 16) para. 6 (c), 16 (c) and 46–49. Para. 29 states that the principle applies to civil cases such as procedures concerning custody. The courts must provide for the best interests of the child to be considered in all such situations and decisions, whether of a procedural or substantive nature, and must demonstrate that they have effectively done so.
- 19.
See for example, Taylor N, Freeman M, Bruning, M and Schrama W, ‘Introduction to the International Handbook’ in Marilyn Freeman, Nicola Taylor and Mariëlle Bruning (eds), International Handbook on Child Participation in Family Law (1st edn, European Family Law, Intersentia 2021); Anna Nylund, ‘A Dispute Systems Design Perspective on Norwegian Child Custody Mediation’; Kirsikka Linnanmäki, ‘Mediation and the Best Interests of the Child from the Child Law Perspective’ both in Anna Nylund, Kaijus Ervasti and Lin Adrian (eds), Nordic Mediation Research (Springer 2018).
- 20.
Rejmer (n 7); Singer (n 1).
- 21.
Rejmer (n 7).
- 22.
Applying the principle of the best interests of the child is an assessment of a future development, in both the short and long terms, CRC, General Comment no. 14 (n 16). See also Anna Kaldal, Parallella processer. En rättsvetenskaplig studie av riskbesömningar i vårdnads- och LVU-mål [A legal study of risk assessments in custody- and child protection cases] (Jure 2010).
- 23.
Rejmer (n 7); Singer (n 1).
- 24.
The Committee of the Rights of the Child points out that the flexibility of the concept of the best interests of the child leaves room for manipulation by parents to defend their own interests in custody disputes, General Comment no. 14 (n 18) 34.
- 25.
Rejmer (n 7). Even if, for example, spending time with a child could be considered a conflict of interest, where the time could be divided between the parents, this is not a solution in high-conflict cases, for instance, when one parent accuses the other of being a risk for the child.
- 26.
Nylund (n 1).
- 27.
Singer (n 1); Jay Lebow, ‘Integrative Family Therapy for Disputes Involving Child Custody and Visitation’ (2003) 17(2) Journal of family psychology 181–92; Jessica J Sauer, ‘Mediating Child Custody Disputes for High Conflict Couples: Structuring Mediation to Accommodate the Needs & Desires of Litigious Parents’ (2007) 7 Pepperdine Dispute Resolution Law Journal 501–533.
- 28.
Eriksson (n 6); Norlén (n 2); Nylund (n 1); Barlow, Hunter, and Ewing (n 1). See also, Johanna Schiratzki, ‘Barnrättsperspektivet I vårdnadstvister—från domstolsförhandling till föräldraförhandling. Vad händer med barnets bästa?’ 2022/23 249.
- 29.
Nylund (n 1); Barlow, Hunter and Ewing (n 1).
- 30.
Barlow, Hunter and Ewing (n 1).
- 31.
Nylund (n 1); Singer (n1); Rejmer (n 7).
- 32.
Nylund (n 1); Rejmer (n 7).
- 33.
Nylund (n 1).
- 34.
Singer (n 1); Barlow, Hunter and Ewing (n 1); Nylund (n 1).
- 35.
Barlow, Hunter and Ewing (n 1).
- 36.
Vandenhole, Erdem Türkelli and Lembrechts (n 16).
- 37.
Kristin Skjørten and Kirsten Sandberg, ‘Children’s Participation in Family Law Proceedings’ in Malcolm Langford, Marit Skivenes and Karl Harald Søvig (eds), Children’s Rights in Norway: An Implementation Paradox? (Universitetsförlaget, 2019); Vandenhole, Erdem Türkelli and Lembrechts (n 16) 144.
- 38.
CRC, General comment no. 12, The right of the child to be heard (25 May–12 June 2009) CRC/C/GC/12 e.g. paras. 70–74. See also CRC, General Comment no. 14 (n 18) 43–45.
- 39.
Barlow, Hunter and Ewing (n 1); Nylund (n 1); Eriksson (n 6).
- 40.
Maria Eriksson, ‘Tackling Violence in Intimacy: Interacting Power Relations and Policy Change’ (2013) 61(2) Current Sociology 171–189; Linnéa Bruno, ‘Contact and Evaluations of Violence: An Intersectional Analysis of Swedish Court Orders’ (2015) 29(2) International Journal of Law, Policy and the Family 167–182; Maria Eriksson, ‘Tackling violence in intimacy: Interacting Power Relations and Policy Change’ (2013) 61(2) Current Sociology 171–189.
- 41.
Eriksson (n 40); Henrik Ingrids, ‘Dilemmas in Child Custody Disputes: the Child’s Best Interest in Courtroom Discourse’ (Stockholm: Department of Child and Youth Studies, Stockholm University 2014); Bruno (n 40).
- 42.
Kay Tisdall, ‘Challenging Competency and Capacity?’ (2018) 26(1) International Journal of Children’s Rights 159–182; Maria Heimer, Elisabeth Näsman and Joakim Palme, ‘Vulnerable Children’s Rights to Participation, Protection, and Provision: The Process of Defining the Problem in Swedish Child and Family Welfare’ (2018) 23(2) Child & Family Social Work 316–323.
- 43.
Barlow, Hunter and Ewing (n 1).
- 44.
Eriksson (n 6). See Anna Kaldal, ‘Children’s Participation in Legal Proceedings—Conditioned by Adult Views of Children’s Capacity and Credibility?’ in Rebbeca Adami, Anna Kaldal and Margareta Aspan (eds), The Rights of the Child; Political, Ethical and Legal Challenges (Brill Nijhoff 2023).
- 45.
CRC, General comment no. 14 (n 16) para. 96.
- 46.
Barlow, Hunter and Ewing (n 1); Nylund (n 1); Skjørten and Sandberg (n 37).
- 47.
Barlow, Hunter and Ewing (n 1); Nylund (n 1).
- 48.
Nylund (n 1); Barlow, Hunter and Ewing (n 1).
- 49.
Barlow, Hunter and Ewing (n 1); Eriksson (n 6).
- 50.
Eriksson (n 6); Heimer, Näsman and Palme (n 42).
- 51.
Norlén (n 2); Eriksson (n 6).
- 52.
CRC, General Comment no. 12 (n 38); CRC, General Comment no. 14 (n 18) paras. 43–45; Skjørten and Sandberg (n 37); Vandenhole, Erdem Türkelli and Lembrechts (n 16).
- 53.
Eriksson (n 6).
- 54.
CRC, General comment no. 14 (n 18) para. 6 (c) and 46–47.
- 55.
See further discussion on the principle as a procedural rule concerning the quality of the best interest assessment in, for example, Milka Sormunen, ‘Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights’ (2020) 20(4) Human Rights Law Review 745–768.
- 56.
CRC, General comment no. 7 (2005): Implementing Child Rights in Early Childhood (20 September 2006) CRC/C/GC/7/Rev.1, for example, para. 4; CRC, General Comment no. 12 (n 38) paras. 32, 33, 51 and 52.
- 57.
Nigel Cantwell, ‘Are “best interests” a Pillar or a Problem for Implementing the Human Rights of Children?’ In Ton Liefaard and Julia Sloth-Nielsen (eds), The United Nations Convention on the Rights of the Child: Taking Stock After 25 Years and Looking Ahead (Brill/Nijhof 2016); Robert H Mnookin, ‘Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems, 226–293.
- 58.
Kaldal (n 44).
- 59.
Norlén (n 2).
- 60.
This judicial involvement can consist of differentiated and mediated responses, such as family group conferencing, alternative dispute resolution mechanisms, restorative justice and kith and kin agreements. Committee on the Rights of the Child (CRC), General comment no. 13, The right of the child to freedom from all forms of violence (18 April 2011) CRC/C/GC/13, paras. 54 and 55.
- 61.
Susanna Johansson, Kari Stefansen, Elisiv Bakketeig and Anna Kaldal,’Implementing the Nordic Barnahus Model: Characteristics and Local Adaptions’ in Susanna Johansson Kari Stefansen, Elisiv Bakketeig and Anna Kaldal (eds), Collaborating Against Child Abuse Exploring the Nordic Barnahus Model (Palgrave Macmillan, 2017).
- 62.
Eriksson (n 6); Schiratzki (n 28).
- 63.
Eriksson (n 6); Kaldal (n 22).
- 64.
Eriksson (n 6); Rejmer (n 7); Kaldal (n 22); Schiratzki (n 28). The following practical example illustrates the problems related to fragmentation in law and legal decision-making in situations where parents find themselves in a deep conflict. According to Swedish social law, a child can be separated from his or her custodian only when the situation in the parents’ home poses a serious risk for the child’s health and development. Similarly, in a custody dispute, some situations may ultimately come down to choosing one parent over the other and denying one parent contact with the child. Indeed, limiting the child’s contact with a parent does not necessarily have anything to do with protecting the child from violence and/or maltreatment. Instead, parents’ inability to cooperate, distance between the parents’ homes and/or the child’s view can be the reason for giving a parent sole custody over a child. However, when questions of violence and maltreatment arise in a custody dispute, the similarities to child protection cases are obvious. The ethical, legal, and knowledge-based dilemmas related to claims or indicators of violence and other maltreatment in the child’s life are a major challenge in parental conflicts.
In these cases, questions arise such as how to investigate the claims or indicators of violence, the burden and standard of proof, how dangerous the situation is in relation to custody, residence, and contact, and the extent to which the child should be allowed to influence the decision.
A system of diverse responsibility and investigation creates a risk for unqualified investigations and decisions.
- 65.
Eriksson (n 6); Rejmer (n 7).
- 66.
Eriksson (n 6); Rejmer (n 7).
- 67.
Nylund (n 1).
References
Barlow A, Hunter R and Ewing J, ‘Mapping Paths to Family Justice: Resolving Family Disputes Involving Children in Neoliberal Times’, in Kaldal A, Hellner A and Mattsson T (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023) 107.
Barton T D, ‘Challenges when Family Conflicts Meet the Law—A Proactive Approach,’ in Kaldal A, Hellner A and Mattsson T (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023) 169.
Bruno L, ‘Contact and Evaluations of Violence: An Intersectional Analysis of Swedish Court Orders’ (2015) 29(2) International Journal of Law, Policy and the Family 167.
Cantwell N, ‘Are ‘best interests’ a Pillar or a Problem for Implementing the Human Rights of Children?’ in Liefaard T and Sloth-Nielsen J (eds), The United Nations Convention on the Rights of the Child: Taking Stock After 25 Years and Looking Ahead (Brill/Nijhof 2016) 61.
Committee on the Rights of the Child, General comment no. 5 General measures of implementation of the Convention on the Rights of the Child (27 November 2003) CRC/GC/2003/5.
Committee on the Rights of the Child, General comment no. 7 (2005): Implementing Child Rights in Early Childhood (20 September 2006) CRC/C/GC/7/Rev.1.
Committee on the Rights of the Child, General comment no. 12 The right of the child to be heard (para. 15) (25 May–12 June 2009) CRC/C/GC/12.
Committee on the Rights of the Child, General comment no. 13 The right of the child to freedom from all forms of violence (18 April 2011) CRC/C/GC/13.
Committee on the Rights of the Child, General comment no. 14 on the right of the child to have his or her best interests taken as a primary consideration (para. 1) (1 February 2013) CRC/C/GC/14.
Eekelaar J, ‘The Role of the Best Interests Principle in Decisions Affecting Children and Decisions about Children’ (2015) 23(1) The International Journal of Children’s Rights 3.
Eriksson M, ‘Tackling Violence in Intimacy: Interacting Power Relations and Policy Change’ (2013) 61(2) Current Sociology 171.
Eriksson M, ‘Children’s Participation and Perspectives in Family Disputes’ in Kaldal A, Hellner A and Mattsson T (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023) 85.
Freeman M, ‘Article 3. The Best Interests of the Child’, in Alen A, Vande Lanotte J, Verhellen E, Ang F, Berghmans E and Verheyde M (eds), A Commentary on the United Nations Convention on the Rights of the Child (Brill/Nijhoff 2007).
Freeman M, ‘The Future of Children’s Rights’ (2000) 14 (4) Children & Society 277.
Goldsmith J C, Ingen-Housz A and Pointoin G, ADR in Business: Practice and Issues Across Countries and Cultures (Kluwer Law International 2006).
Heimer M, Näsman E and Palme J, ‘Vulnerable Children's Rights to Participation, Protection, and Provision: The Process of Defining the Problem in Swedish Child and Family Welfare’ (2018) 23(2) Child & Family Social Work 316.
Ingrids H, Dilemmas in Child Custody Disputes: The Child's Best Interest in Courtroom Discourse (Department of Child and Youth Studies, Stockholm University 2014).
Jaffe P G, Johnston J R, Crooks C V and Bala N, ‘Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans’ (2008) 46(3) Family Court Review 500.
Jämställdhetsmyndigheten, Uppgifter om våld är inget undantag. Redovisning av kartläggning av uppgifter om våld eller andra övergrepp i mål om vårdnad, boende och umgänge, Rapport 2022:1.
Johansson S, Stefansen K, Bakketeig E and Kaldal A, ‘Implementing the Nordic Barnahus Model: Characteristics and Local Adaptions’ in Johansson S, Stefansen K, Bakketeig E and Kaldal A (eds), Collaborating Against Child Abuse Exploring the Nordic Barnahus Model (Palgrave Macmillan 2017) 1.
Kaldal A, Parallella processer. En rättsvetenskaplig studie av riskbesömningar i vårdnads- och LVU-mål (Jure 2010).
Kaldal A, ‘Children’s Participation in Legal Proceedings—Conditioned by Adult Views of Children’s Capacity and Credibility?’ in Adamin R, Kaldal A and Aspan M (eds), The Rights of the Child; Political, Ethical and Legal Challenges (Brill/Nijhoff 2023) 61.
Lew J D M, Mistelis L A and Kröll, S M, ‘Arbitration as a Dispute Settlement Mechanism’ in Lew J D M, Mistelis L A and Kröll, S M (eds), Comparative International Commercial Arbitration (Kluwer Law International 2003) 1–15.
Lebow J, ‘Integrative Family Therapy for Disputes Involving Child Custody and Visitation’ (2003) 17(2) Journal of Family Psychology 181.
Lindblom P H, ‘Processen—bara en formsak?’ in Lindblom P H (ed) Studier i processrätt (Norstedts juridik 1993) 17.
Lindblom P H, ‘Progressive Procedure. The Courtroom Process and Societal Development’ in Lindblom P H (ed), Progressive Procedure Twelve Essays 1985–2015 (Iustus 2017) 17.
Mnookin R H, ‘Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems 226.
Norlén A, ‘Children’s Health Matters in Custody Conflicts—What do we know?’ in Kaldal A, Hellner A and Mattsson T (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023) 21.
Nylund A, ‘A Dispute Systems Design Perspective on Norwegian Child Custody Mediation’ in Nylund A, Ervasti K and Adrian L (eds), Nordic Mediation Research (Springer 2018) 9.
Nylund A, ‘Scandinavian Family Mediation: Towards a System of Differentiated Services?’ in Kaldal A, Hellner A and Mattsson T (eds) Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023) 41.
Rejmer A, ‘Custody Disputes from a Socio-legal Perspective’ in Kaldal A, Hellner A and Mattsson T (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023) 41.
Reynaert D, Bouverne-de-Bie M and Vandevelde S, ‘A Review of Children’s Rights Literature since the Adoption of the United Nations Convention on the Rights of the Child’ (2009) 16(4) Childhood 518.
Rossi F S, Holtzworth-Munroe A and Rudd B N, ‘Intimate Partner Violence and Child Custody’ in Leslie Drozd, Michael Saini and Nancy Olesen (eds), Parenting Plan Evaluations: Applied Research for the Family Court (Oxford University Press 2016) 346.
Salminen K, ‘Mediation and the Best Interests of the Child from the Child Law Perspective’ in Nylund A, Ervasti K and Adrian L (eds), Nordic Mediation Research (Springer 2018) 209.
Sander S, Strizzi J M, Øverup C S, Cipric A and Hald G M, ‘When Love Hurts—Mental and Physical Health Among Recently Divorced Danes’ (2020) 11 Frontiers in Psychology 1.
Sauer J J, ‘Mediating Child Custody Disputes for High Conflict Couples: Structuring Mediation to Accommodate the Needs & Desires of Litigious Parents’ (2007) 7(3) Pepperdine Dispute Resolution Law Journal 501.
Schiratzki J, Barnrättsperspektivet i vårdnadstvister—från domstolsförhandling til föräldraförhandling. Vad händer med barnets bästa? (2022/23) 1 Juridisk Tidskrift.
Singer A, ‘Out-of-court Custody Dispute Resolution in Sweden—A Journey Without Destination’, in Kaldal A, Hellner A and Mattsson T (eds), Children in Custody Disputes: Matching Legal Proceedings to Problems (Palgrave 2023) 129.
Skjørten K and Sandberg K, ‘Children’s Participation in Family Law Proceedings’ in Langford M, Skivenes M and Søvig K H (eds), Children’s Rights in Norway: An Implementation Paradox? (Universitetsförlaget 2019).
Sormunen M, ‘Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights’ (2020) 20(4) Human Rights Law Review 745.
Taylor N, Freeman M, Bruning M and Schrama W, ‘Introduction to the International Handbook’, in Taylor N, Freeman M, Bruning, M and Schrama W (eds), International Handbook on Child Participation in Family Law (1st edn, European Family Law, Intersentia 2021).
Tisdall K, ‘Challenging Competency and Capacity?’ (2018) 26(1) International Journal of Children’s Rights 159.
Vandenhole W, Erdem Türkelli G and Lembrechts S, Children’s Rights: A Commentary on the Convention on the Rights of the Child and Its Protocols (EE 2019).
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.
The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.
Copyright information
© 2024 The Author(s)
About this chapter
Cite this chapter
Hellner, A., Kaldal, A. (2024). Beyond the Horizon: Matching Legal Proceedings to Problems in Custody Disputes. In: Kaldal, A., Hellner, A., Mattsson, T. (eds) Children in Custody Disputes. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-46301-3_10
Download citation
DOI: https://doi.org/10.1007/978-3-031-46301-3_10
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-031-46300-6
Online ISBN: 978-3-031-46301-3
eBook Packages: Social SciencesSocial Sciences (R0)