The Equality Principle: Splitting the Difference in Custody Disputes

• Date: 01 October 2018
• Published date: 01 October 2018
• Author: Leonard S. Ngaosuvan
• DOI: http://doi.org/10.1111/fcre.12377

THE EQUALITY PRINCIPLE: SPLITTING THE DIFFERENCE

IN CUSTODY DISPUTES

Leonard S. Ngaosuvan

In some custody disputes parents are equally fit, other factors are not decisive, shared custody is ruled out, and the parental

conflict is the only threat to children’s well-being. There are no systematic principles to resolve these disputes. To fill this

gap, I introduce the equality principle. Following splitting the difference and goal-setting theory, parents renegotiate under

threat of randomization. If renegotiation fails, their chances of winning are equal. This principle may improve children’s well-

being, parental behavior, court efficiency, and custody investigations. The principle is discussed in terms of child perspective,

appellate rights, applicability, irrationality, and attorney effects on negotiations.

Key Points for the Family Court Community:

•The equality principle is a strategy to motivate litigating parents to agree about custody,living, or visitation disputes.

•Compared to the present system, the equality principle is beneficial because

○Children spend less time in harmful uncertainty,

○Parents are incentivized to behave more rationally and generously,

○Courts and parents save resources,

○Custody evaluations are improvedas ir relevant differences between parents are ignored, and

○Judges are less emotionally strained to make important decisions based on insufficient information.

Keywords: Custody Disputes; Equality Principle; Goal-Setting Theory; High-Conflict Parents; and Splitting the Difference.

Every year, thousands of children worldwide experience divorce and custody, living, or visitation

disputes. Some are messy, and children suffer greatly for prolonged periods. In this article, “custody

dispute”refers to any custody, living, or visitation dispute. Similarly, “custody evaluator”represents

any professional who conducts custody evaluations, and “parent”means any parent or caretaker.

The article begins with a brief introduction to custody disputes, splitting hairs and splitting the dif-

ference, and motivations and goals. Then, the equality principle (EP) is introduced and followed by

discussion.

I.CUSTODY DISPUTES AND CUSTODY INVESTIGATIONS

Custody disputes occur when parents cannot agree about custody, living, and visitation rights. In

some countries, parents sue each other for custody, and courts instruct some other governmental

unit to negotiate between parents or to conduct custody evaluations to provide information for the

court’sfinal decisions. Typically, custody evaluations put children’s needs before parents’. Although

custody evaluations are not the only documents read to make independent decisions, courts often

follow their recommendations (Kunin, Ebbesen, & Konechi, 1992; Rejmer, 2003).

Custody evaluations consist of risk assessments (RAs) to ensure that children do not live in risk-

associated environments and investigations for the child’s best interests (ICBIs). RAs consider pro-

tective factors such as good parent–child relationships, parental self-esteem, and good child social

Corresponding: leonard.ngaosuvan@hig.se, leo@cleboconsulting.se

FAMILY COURT REVIEW, Vol. 56 No. 4, October 2018583–596

© 2018 The Author. Family Court Review published byWileyPeriodicals, Inc. on behalf of Association of Family and Conciliation Courts

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

and reproduction in any medium, provided the original work is properlycited andis not used for commercial purposes.