Custody Lawyer Says Solomon Had It All Wrong

Women fare poorly in court battles over custody, as do children, says a lawyer who now refuses to fight custody battles. She has now joined a small but growing minority of family law lawyers who seek to reduce conflict in custody disputes.

Custody lawyer Ellen Effron

Ellen Effron is a successful Stamford, Conn., lawyer specializing in custody disputes. She is also nationally known as the former chair of the American Bar Association's custody committee and the author of several books and articles on custody issues and family law.

What she is not anymore is a lawyer willing to go to court to do battle over which parent should have custody. And she speaks with the zeal of any recent convert when she discusses the path she is not pursuing. Effron remembers when she realized enough was enough.

She was representing a father who was clearly more deserving of primary custody-the mother had uncontrollable bouts of manic-depressive illness and was given to wandering the streets. But rather than demolish the woman in court, while both sides incurred tens of thousands of dollars in legal fees, Effron wanted to approach the matter differently.

"I went to the other side's attorney and said: ‘Let's work something out. Your client won't make it through litigation. Let's help her. I don't think she can have primary custody, but we want her to be a mother-just not in a care-taking capacity.'"

Effron was hoping they could figure out a way for the mother to receive treatment but still be an important presence in her children's lives.

Her offer was refused.

"The case went to court, the father got sole custody, the mother got supervised visitation and ended up in a hospital halfway through the case. And the family went bankrupt because the litigation process depleted their finances."

Effron knew she had to take a stand. "I decided I would no longer litigate custody cases. The system is barbaric-it's about determining who's an unfit parent, not what's best for the child."

Moreover, Effron believes child custody disputes are especially difficult for women. Statistics indicate that women win as often as men in custody litigation, but Effron thinks women are more likely to be scarred by the process.

"It's very damaging for them. They feel as if they're under attack. They may not present themselves well and are put off by the judges' coldness and officiousness," says Effron. And they're likely to settle for less, just to have the fight over with. "It's just not their scene."

So, she now limits her practice to mediation and works in tandem with mental health professionals to bring about settlements cooperatively, even when there's no love lost between the parties.

Effron's decision now places her in a small but growing minority of lawyers who say there simply must be a better way to decide parents' and children's fates and the way is mediation.

"Parents involved in mediation see themselves as working together for the sake of their children, [rather than] against one another, as often happens in litigated cases," writes lawyer Lauren Wenegrat in "Common Good," a social policy journal of the Fordham University School of Law.

Another lawyer, Andrew Kaplan in the Rutgers Law Record wrote: "Children of mediated divorces seem to adjust better to their new situations and their parents appear to have fewer hostilities toward each other."

How is mediation different? Essentially, it allows a couple to reach an agreement or "parenting plan" on their own, although both are usually advised of their rights and given strategy tips by lawyers.

The mediator, a professional usually with a background in law or mental health, articulates the outstanding issues and facilitates communication by acting as a go-between.

The theory is that because parents are negotiating privately, they can maintain privacy, speak in candor about sensitive psychological issues and work things out in a less stressful and punitive atmosphere.

"Judges and court personnel aren't that kind to litigants," opines Effron. "They don't like it when people get emotional." Plus, since judges bring their own biases to the table and rarely have a background in child development, they're more likely to be part of the problem than the solution, she says.

Mediation also introduces a new dimension to the psychologist's role.

When an expert psychologist is on the stand, Effron notes, an attorney is either trying to trip the expert up, or get the expert to say things favorable to the attorney's side.

Taken out of these constraints, mental health professionals can speak freely and recommend more individualized visitation arrangements, Effron argues.

"We're so hung up on the model of giving the non-custodial parents alternate weekends, but if you look at child development literature, there's no empirical basis for it," she says.

Yet, one of the most hotly debated questions in legal circles is whether mediation is appropriate for cases with a history of domestic violence.

Of the 33 states that mandate mediation in custody disputes, most exclude these cases automatically on the assumption that there can't be a fair bargaining process when the threat of violence hangs over someone's head.

Wenegrat, however, argues in her law review article that couples should be given the option of deciding for themselves.

"Mediation teaches parties how to avoid violence by negotiating and working together. It is associated with greater reduction in physical, verbal and emotional abuse than lawyer-assisted settlements, making mediation especially appropriate for victims and perpetrators of domestic violence."

Effron says she isn't sure about whether these cases belong in mediation, but is certain the rest don't benefit from an adversarial system.

"It's bureaucratic and treats children as faceless, nameless and ultimately meaningless."