CUSTODY EDUCATION COMMITTEE TAKES ON MAMMOTH TASK

For years judges and lawyers have wondered how to keep parents from doing the same terrible things to their children in case after case as they battle one another for child custody. They naturally tend to wonder whether some kind of training, indoctrination or exhortation would work. However, unanimity on solutions may prove elusive, given differing professional points of view.

Lawyers tend to think that fighting over child custody more or less goes with the territory so long as society continues to encourage divorce, and for the children's sake they just would like to see parents trained to fight fairly. Judges want parents to stop fighting for custody at all, since only that will decrease pressures on their overcrowded courts. Social workers tend to think that everybody needs social work, and to seize upon the point of divorce as an opportunity to gain a captive audience for mandatory parenting education.

In recent years court systems everywhere have started experimenting with child-centered education or indoctrination programs for divorce litigants -- or at least for those who contest the child custody issue. Under a host of names such as Families First, Kids First, Children Cope With Divorce, Don't Divorce the Children, and No Course No Divorce, these programs often are required as a precondition of using the court system. They nearly always include some kind of video presentation which is usually combined with written materials, lectures or both.

A new committee of the Family Law Section's Board of Governors is reviewing various programs with a view to recommending something that might be used by Virginia courts statewide. The Committee is headed by Circuit Court Judge Preston Grissom and JDR District Court Judge Jean Harris. It includes some members of the Section Board of Governors and a number of other members, drawn mostly from the Bar's Family Law Section.

At its first formal meeting, this Summer, the Committee quickly found that the matter is not as simple as it appears, since anyone seeking to recommend a state-wide program must face a number of very basic questions. Should the courses be mandatory for all courts statewide, and should this be achieved by legislation? Or should the legislation only be "enabling" legislation that will let each local judge require the procedure? Should the program address only the battling adults, or should the education about divorce be extended to the children as well? Should it be limited to those involved in divorce-related custody litigation, or should it be required of everyone who enters the court for any kind of child-related issue? Should parents be allowed to escape by agreeing on custody and not fighting about it at all, or must they be subjected to indoctrination and parenting education whenever they end their marriage, however amicably? In fact, there was considerable dispute over whether the question of mandatory/voluntary can be decided before the kind of program is decided upon; or whether, on the contrary, the exact nature of the program must be decided first.

A complicating factor is that a Joint Resolution from the last General Assembly, HJR No. 225, requires a committee under Executive Department direction to review the programs of other states and report on what could be done here. It was pointed out that, given party differences between Executive Branch and Legislature, such committee reports are often subject to becoming part of the ideological and political debates over "family values," etc. The Joint Resolution program is called "Parenting Skills for Separated Couples," implying that it has itself grown far beyond any idea of a minimal one-time orientation program for those about to enter custody litigation. And indeed, those present representing the social worker concerns spoke of all of this as "parenting education," with the idea that anyone who is a parent needs it.

The question of the court system starting this project, but turning it over to social workers for execution, without continuing to be involved in its content and delivery, was also discussed, because of the possibility of an adopted program changing shape radically as time goes on. Several factors that might offset that tendency were brought up, including continued close supervision, the lack of time for busy teachers to add favored variations to a content-packed program, and the observation of those conducting the "Children Cope With Divorce" program. These people, having paid a substantial amount for the right to use this copyrighted program, feel that strict adherence to the printed lesson plan is part of getting their money's worth.

The mechanics of spending state money for video production were discussed, as were the prospects of obtaining funds by grants and other alternative means. Whether a half hour of first-rate video should cost $100,000.00, or 1/50 of that, was among the questions the Committee learned it had to confront. The availability of local civic cable networks as donors of video services was identified as an important variable.

More than one attorney mentioned the need for a discretionary provision that would keep judges from having to subject all litigants who file for a divorce to this particular training. But it turned out that the question whether a couple of unscrupulous parents should be allowed to escape the mandatory reeducation by cunningly agreeing to their custody disposition rather than fighting about it was a subject of serious debate, and one of those questions that the Committee has to face. Indeed it was admitted by all that cases which dispose of custody by separation agreement do not always prevent bad post-divorce parenting, and that bad performance of the parents under incorporated agreements as well as other decrees often produces modification and other post-decree litigation.

Meanwhile the National Law Journal and Lawyers' Weekly USA reported that Chicago judge Lester Foreman in Schulp v. Mackoff, 94 LWUSA 797 (No. 94-CH-3853, 8/12/94), held a requirement that divorcing parties go to parenting classes an unconstitutional restriction of the right to full, free and unimpeded divorce, exceeding the legitimate powers of judges.