Improving Custody Dispute Negotiation: Empirical Testing of the Equality Principle

• Author: Leonard Ngaosuvan,Andreas Öien,Bruce McLean,Kim Loo
• Date: 01 October 2020
• DOI: http://doi.org/10.1111/fcre.12497
• Published date: 01 October 2020

IMPROVING CUSTODY DISPUTE NEGOTIATION: EMPIRICAL

TESTING OF THE EQUALITY PRINCIPLE

Leonard Ngaosuvan, Andreas Öien, Bruce McLean, and Kim van Loo

The Equality Principle (EP) is a novel idea to motivate parents litigating in custody disputes to negotiate. The EP is designed

for a special but common case in which both parents are individually fit, there are no decisive differences between the two

households that the parents live in, but the conflict between the parents is so infected that the children’s well-being is threat-

ened and shared custody must be ruled out. The present paper empirically tested the Equality Principle in its higher bidder

version. In this version, both parents are first told that the conditions for the EP are met. Then, both parents are asked how

much visitation they would allow the other parent, assuming that they would win sole custody and living.The most generous

parent is awarded custody and living, along with a dictum to facilitate the promised amount of visitation. In the present

model (PM), the offered amount of visitation has no functional effect on the custody dispute because the judges and jurors

award custody as well as the amount of visitation. A within-subjects vignette experiment measured 52 participants’levels of

visitation generosity in the EP and the PM. Participants showed significantly higher visitation generosity in the EP compared

to the PM. The results are discussed in terms of representation of the present model, an equal amount of visitation offered,

ecological validity, child perspective, and appellant’s rights. In conclusion, the present paper showed that the EP is a promis-

ing strategy to resolve seemingly unresolvable custody disputes.

Practitioner’sKey Points:

The longer the custody dispute, the more children suffer. The Equality Principle encourages swift resolution which

helps children.

The Equality Principle is designed to resolve custody litigations where both parents are fit by making them compete

in visitation generosity.

The Equality Principle has at least two versions; randomization and highest bidder of visitation time wins. Highest

bidder is probably more plausible for the general public.

Empirical evidence shows that the Equality Principle in the highest bidder wins variant is a promising strategy to

quickly resolve high conflict custody disputes with fit parents.

Keywords: Custody disputes; Equality principle; Negotiation; Vignettestudy; Visitation generosity.

Every year, thousands of children have experience from high-conflict separations between their

parents. It is a well-known fact that children in high-conflict divorces and custody disputes suffer

(Amato, 1993; Emery, 1999). Both physical problems (headaches, stomach aches, fever), as well as

psychological issues such as anxiety, fear, insecurity, issues with sleeping, nightmares, and depres-

sion have been reported (Bergman & Rejmer, 2017). Furthermore, the intensity and longevity of the

conflict affect the children’s well-being negatively. A comparison of literature on parental divorce

and early childhood development has demonstrated that parental divorce and especially its conse-

quences for the parental emotional states, economic standings, and behaviors have a significant

influence on children’s emotional, social, and cognitive development (Leon, 2003). For the sake of

the affected children, solving the custody dispute fast should be a major point of focus. Further-

more, making sure that parents adhere to decisions made –by the court or by themselves –is

crucial. In this way, hopefully, ongoing damage to the affected children’s development and psycho-

logical and physical health can be inhibited. For the present paper, the label custody dispute is used

as a catch-all phrase for litigation for custody, living, and visitation. Furthermore, we use the term

custody evaluator regardless of the training of the one conducting the custody evaluation.

Correspondence: leonard.ngaosuvan@ait.gu.se; leo@cleboconsulting.se

FAMILY COURT REVIEW, Vol. 58 No. 4, October 2020 1049–1060, doi: 10.1111/fcre.12497

© 2020 The Authors. Family Court Review published by Wiley Periodicals LLC. on behalf of Association of Family and Conciliation Courts.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction

in any medium, provided the original work is properly cited.