HD24 - Influences on Judges' Decisions in Child Custody Disputes in the Commonwealth of Virginia

Executive Summary:
A. Background

The 1999 Session of the General Assembly of Virginia directed that the Office of the Executive Secretary (OES), Supreme Court of Virginia, conduct a study relating to child custody determinations, preparatory to consideration of legislation or guidelines for a presumption of joint physical custody when a marriage or other relationship is dissolved and custody of the children born of that relationship is at issue. This legislative action was initiated because of a study completed by the Virginia Commission on Youth ("Study of Joint Custody and Visitation, Report by the Commission on Youth to the Governor and General Assembly," House Document No. 24, 1999). That report states that legislation establishing a presumption of joint custody has been offered as a means of responding to a belief held by some that gender bias exists in judicial decision making in child custody cases. It is not evident that such a bias exists or, if the bias is present in Virginia, that joint custody is the proper remedy. (House Document No. 24, 1999, page 27.) Thus, the Commission recommended that a research project be funded to examine the factors which judges use in child custody decisions in Virginia.

The necessity of this study is underscored when one considers the absence of relevant data available to Virginia's Courts and the weaknesses in the broader research literature. Data describing the influences on judges' decisions in specific cases are not available to the Court or the General Assembly. As is noted in reviews of the literature addressing influences on judges' decision-making processes and of the psychological literature on influences on children's adjustment to divorce, no data exist either within the Commonwealth of Virginia or nationally that can answer these questions.

A review of the psychological literature (see Section VIII) indicates that the most salient influences on children's adjustment to divorce include the continued parent-child relationships and the custody decision making that supports continuity in these relationships. Psychological factors and Code of Virginia variables stated in § 20-124.3 are substantially overlapping. The exact methods involved in judges' decision-making processes are not known, raising questions such as:

• How are judges using the Code of Virginia in rendering decisions?

• What elements of § 20-124.3 of the Code of Virginia are given the greatest priority?

• Do in-court and process variables such as effectiveness and demeanor of counsel, experts, and litigants shape the judges' decisions?

• Does parents' gender influence the judges' decisions? Section III provides a more detailed description of the guiding questions and other factors that establish the scope of this research.

B. Methodology

The strategy used to answer General Assembly questions about influences on judges' decisions in child custody disputes between parents involved eight main steps. (A more detailed discussion of the methodology is contained in Section IV.) The eight steps were:

1. Identifying data elements and developing an analytical framework to address the above questions and to permit judges to provide both quantitative and qualitative information relevant to their decision processes.

2. Designing quantitative and qualitative data collection methods to permit acquisition, compilation, and integration of the requisite data.

3. Developing and piloting the resulting surveys and interviews.

4. Distributing and collecting surveys from judges throughout Virginia, observing custody dispute proceedings, and interviewing selected judges across Virginia.

5. Conducting focus groups with judges from around the state, discussing project findings, and inquiring about processes not identified through the procedures in steps 1 through 4.

6. Reviewing the last three years of relevant letter opinions from Virginia Circuit Courts and published opinions of the Virginia Court of Appeals and the Supreme Court of Virginia to determine if, at the Circuit Court level, courts consistently apply all of the factors set out in the Code of Virginia § 20-124.3.

7. Conducting a review of the psychological literature on the issue of child custody to be used as a basis of comparison for the results derived from the case profiles, general survey, interviews, and focus groups.

8. Integrating and evaluating the findings from the surveys, in-court research, case reviews, and review of the psychological literature.

No one data collection process can produce results that statistically represent all disputed custody cases between parents. Consequently, the following types of processes and surveys were developed to maximize the breadth of relevant and accurate information that could be collected.

The Judges' Decision Profile instrument focused on decision-making factors for specific cases. Surveys were sent to all Circuit Court and Juvenile and Domestic Relations (JDR) judges with the request that they use the instrument to "profile" one or more recent, relevant case. The results derived from this survey provided a basis for quantifying the relative influence of variables influencing judges' decisions.

The General Survey provided general, quantitative information on judges' caseloads, the numbers of cases reaching settlements, and judges' orders on legal and physical custody.

Interviews and observations of relevant courtroom proceedings provided an opportunity to collect rich, qualitative information concerning the decision-making process. Moreover, the interviews with approximately 20% of all Circuit and JDR Court judges in Virginia provided invaluable insight as well as a vehicle to corroborate or challenge quantitative results. Interviews were held in all regions of the state, and the participating judges reflect a demographic profile of the total judicial population addressed by this research.

Focus groups and additional interviews were held with judges around the Commonwealth to give them a chance to review the project's findings, to initiate a more complete discussion of the study's central questions, and to permit judges the opportunity to validate, dispute, and/or augment preliminary results.

A statistically representative sample of custody cases is probably impossible to achieve. The number of variables is large; the number of combinations and permutations of these variables is extremely large. The process by which Decision Profile data could be collected almost assured that the cases profiled did not reflect a statistically representative sample of all disputed custody cases between parents. The judges were asked to describe their decision-making processes in specific cases they had heard and ruled on in the last thirty days. They were asked to complete many questions about each proceeding and to describe the many intricate details of each case. These data provided a useful "profile" of the decision-making factors for these cases but, in all likelihood, the judges used as examples cases whose details they remembered, whose facts were most completely presented, and that were the most complex and interesting to them. It is possible that more courtroom time was devoted to these cases and that a greater percentage of these cases had legal representation, expert witnesses, and guardian ad litem (GAL--a lawyer appointed to represent the best interest of the child) appointments.

However, the results also suggest that factors such as legal representation, expert witnesses, and other aspects distinguishing the more complicated cases do not produce significantly different influence factors in the judges' decisions (see Section V.B.4). Moreover, the qualitative component of this study provided a venue through which to validate or modify the quantitative results. The 47 judges interviewed and/or included in the focus groups represent about 400 years on the bench and probably decide 3,000 to 6,000 disputed custody cases annually. These judges generally concurred with the quantitative results. Consequently, the number of cases considered, the demographics of the courts and judges, and the qualitative validation by judges of the Decision Profile results suggest that the quantitative results can provide valuable insight into, if not a statistically significant profile of, the decision-making process.

C. Observations and Conclusions

The guiding research questions underpinning the study provide a framework for presenting results and conclusions. These questions include: (1) How are judges using the Code of Virginia in rendering decisions? (2) What elements of § 20-124.3 of the Code of Virginia are given the greatest. priority? (3) Do in-court and process variables such as effectiveness and demeanor of counsel, experts, and litigants shape the judges' decisions? And (4) Does parents' gender influence the judges' decisions? The following observations and conclusions reflect results from all data collection approaches used in this study. More detailed discussions of the results leading to these findings are contained in Section V through Section VIII.

1. Judges' decisions are substantially shaped by the Code of Virginia's "best interests" guidelines and are generally consistent with psychological factors found to influence children's adjustment to divorce.

This conclusion is supported through empirical analyses, interviews with judges, and a review of the last three years of relevant letter opinions from Virginia Circuit Courts and published opinions of the Virginia Court of Appeals and the Supreme Court of Virginia. In the interviews, judges consistently noted that the existing § 20-124.3 of the Code of Virginia is adequate, is flexible, permits the application of common sense, and promotes good decision making. Judges also reported that it is rare to find a critical influencing factor that is not covered by § 20-124.3.

2. Empirical and in-court results suggest patterns in the frequency with which § 20-124.3 variables were applied and influenced results. However, in the in-court interviews and focus groups, judges typically noted that all factors were equally "significant" because each of the factors could be critical in any specific case. They also tended to agree that several factors influenced cases more frequently.

Primary Influencing Factors. Children's needs, parental competence, parental involvement, and parental effectiveness were the statistically significant determinants of custody and visitation for the custody cases profiled for this study. Judges that reviewed the research findings generally concurred with the results derived from the quantitative profiling process. In interviews and focus groups, judges typically reported that stability of the child's environment, parenting competence, and the strength of the parent-child relationship were most frequently the more significant influences on their child custody decisions. The common themes relating to influencing factors derived from the review of Virginia case law included assuring the stability and continuity for the child. The review of the psychology literature also provided consistent conclusions as to what factors should most influence decisions.

Parental Cooperation and Communication. Analyses of parents' abilities to work together and to support and respect the role of the other parent were not found to be statistically important in physical custody determinations for the cases profiled. However, most, if not all, of the judges interviewed indicated that these factors are of primary consideration in determining whether or not joint legal custody is a viable solution. These judges also noted that they would not even consider joint physical custody without an exemplary demonstration of the parents' abilities to work together and to support and respect the role of the other parent.

Problematic Events and Conditions. The only parent history variable that judges reported as having a significant influence on their decisions was a parent's history of mental or emotional conditions that limited parenting abilities. The influence of histories of child abuse or spouse abuse on custody decisions was indirect, but still substantial. Histories of abuse co-occurred with other problematic events and parenting characteristics, all of which judges weigh heavily in their custody decisions (see Section V).

Stated Preference of the Child. A child's stated preference in custody disputes becomes more important for children 13 years of age, or older. Judges more frequently considered the preferences of these older children to be a major influence in the custody determination (see Table 5 for a more detailed presentation of these data). In interviews, judges reported widely varying views on the wisdom of relying on the stated preferences of the children, citing the risks of manipulation by the parents, undue stress imposed upon the children, and the creation of false expectations for the children as primary concerns. Maturity of the child and comprehension of the custody process were cited as factors most likely to influence the judges' acceptance of a child's preference.

Visitation. Influences on judges' decisions about a parent's visitation orders were studied because visitation is usually part of a custody order and because visitation and custody are intricately connected in custody matters. Like custody decisions, the amount of visitation time awarded to a parent in the cases profiled was directly related to parenting competence. When parents were rated as having strong parenting competencies, they were also given more visitation time with their children.

3. Empirical Decision Profile results suggest little or no correlation between the presence of legal representation and the resulting custody decisions. In interviews and focus groups, judges expressed very mixed reactions as to the extent and manner in which the in-court and process variables such as effectiveness and demeanor of counsel, experts, and litigants shape their decisions.

Judges did not rate the credibility and effectiveness of those professionals involved in child custody cases as significant influences on judges' decisions for those cases profiled. However, in interviews and focus groups, judges consistently noted that the quality of the evidence presented does affect the quality of the decision. Many of the judges interviewed commented that effective and prepared counsel, GALs, and experts usually help to convey relevant information more clearly and, thereby, facilitate a decision that is in the best interests of the child.

Lawyers. Judges reported that effective legal counsel helps to make the trial a more efficient process, but lawyers do not necessarily sway a judge's conclusions in favor of that attorney's client. When attorneys are fair, provide their clients with realistic expectations for case outcomes, and do not promote inter-parent conflict, they are important in making the courtroom process more effective and efficient. Judges typically commented that when attorneys do not meet these standards for performance, they slow down the process and necessitate the involvement of objective third parties (e.g., GALs). Some of the judges commented that they order legal representation for the children in cases where attorneys promote inter-parent hostility. Judges consistently remarked that one of their most difficult problems in obtaining sufficient information to make an informed decision was the imbalance of one party with good representation and one poorly prepared pro se litigant. They also reported that two poorly prepared pro se litigants can present major problems in obtaining sufficient information to make an informed decision.

GALs. Judges reported widely varying uses of GALs. Many of the judges interviewed considered GALs among the most important resources available to them, particularly in cases in which the GALs assumed aggressive, investigative roles. However, empirical data and judges' comments portrayed high levels of variability in effectiveness, commitment, and training that limit the impact of GALs, as a whole.

Expert Witnesses. Empirical data suggest that experts are generally helpful in extreme cases when abuse is reported and when supervised visitation may be ordered. Many of the judges reported that experts often lack objectivity and have limited relevant training. Their utility is directly proportional to their ability to "tell me something I don't already know." The role of experts can be maximized when they are well trained in child development, thorough in their evaluations, and able to provide unique and objective information.

4. There was a very strong correlation between a parent's gender and judges' child custody decisions in disputes involving children younger than six years old. A parent's gender did not correlate with the decisions rendered when custody involved children six years old or older. Interviewed judges generally believed custody awards are slightly in favor of mothers, particularly for younger/infant children. However, most judges also perceived an increasing trend toward fathers' being awarded custody.

As shown in Figure 1, mothers of children younger than two years old were awarded custody three times as often as fathers of the same children. Mothers of three- to five-year-olds were awarded custody twice as often as fathers. For children six years old and older, however, fathers were awarded custody slightly more frequently than mothers. In interviews and focus groups, judges noted that frequently the award of younger children to mothers was attributable to assuring the stability of the child's environment. They observed that, in their experience, the mother had more frequently been the primary care-provider for these younger children.

For the profiled cases, no differences in the parenting competencies of the custodial mothers and non-custodial fathers of these preschool-aged children were found when statistical comparisons were made, thereby suggesting that the differences in custody awards by gender are not due to differences in parenting competencies (see Section V). The fact that the surveys did not provide information as to which parent had custody at the time of the hearing precluded analysis of the influence of "assuring the stability of the child's environment" on these decisions.

5. Other Observations and Conclusions

For the cases profiled in this study, parents appeared in court, typically with representation and supporting witnesses. For these cases, judges were presented with a majority of the information that they needed to make their decisions. Several judges noted that in their courtrooms, a parent's choosing not to appear for disputed custody cases on the docket was common. For the cases profiled in the study, however, almost 99%) of the parents were present in court, over 70% had legal representation, and over 75% had supporting witnesses. Most judges in the interviews and focus groups, particularly the JDR judges, reported somewhat significantly lower values for each of these categories. In over 96% of the cases profiled for this study, judges reported that the pertinent and necessary information needed to make a decision was presented. Differences in the Judges' Decision Profile survey results and the interview and focus group responses probably relate to the representativeness of the sample.

The nature of the custody and visitation cases before the Court is changing. Several of the judges noted in interviews that, although the majority of custody disputes occur between previously married parents, the incidence of custody disputes between parents who have never been married and custody disputes between parents and other extended family members such as grandparents, stepparents, aunts, and uncles is significantly on the increase.

Many of the judges also reported other trends in parenting roles and in custody decisions. Several judges observed that fathers are becoming more engaged with their children and are becoming more effective and responsible parents. They are, therefore, awarded custody and substantial time with their children more often than in the past.

Judges' annual custody docket loads vary greatly. In interviews, most judges reported that reducing docket load would provide the greatest potential for improving the current manner in which child custody is determined. On the General Survey, the responding judges reported that, on average, they had approximately 250 disputed cases annually with approximately 120 going to trial. In interviews and focus groups, judges also estimated that, on average, about half of their cases went to trial while the remainder reached out-of-court settlements that were approved by the judge. However, their individual estimates ranged from 10% to 90%, showing wide variations by courtroom, type of judge (e.g., Circuit Court versus JDR), and geographic region.