THE ROLE OF THE ATTORNEY IN RESOLVING CUSTODY DISPUTES

• Date: 01 December 1988
• Published date: 01 December 1988
• DOI: http://doi.org/10.1111/j.174-1617.1988.tb01032.x
• Author: Hugh McIsaac

THE

ROLE

OF

THE ATTORNEY

IN RESOLVING

CUSTODY

DISPUTES

By

Hugh

McIsaac, Director

Family Court Services

-

Conciliation

Los

Angeles County Superior Court

This paper explores the relationship of the attorneys

for each parent, or interested party, and the child cus-

tody mediator in helping families resolve custody dis-

putes within the context of divorce. The article begins

with a brief discussion of the contextual issues unique to

the divorce process, examines four families and how

their conflicts were resolved through the cooperation

between the attorneys and the child custody mediator,

and draws from these empirical experiences some gen-

eral principles regarding the role of the attorney in

resolving these complex disputes.

CONTEXTUAL ISSUES

Several authors have developed

a

family systems

analysis of divorcing families, which provides the most

murate and meaningful context for understanding these

families and the interventions most likely to assist them

(Saposnek 1983; Irving 1987;

Rid

1980, McIsaac 1986).

Essentially every

family

is

a rule governed process.

Rules

are either intrinsic or extrinsic, unstated or expressed

(Bowen 1978).

Divorce represents a reorganization of the system,

and essentially two classes of issues present themselves

for resolution: distributive, and integrative (Raiffa 1982;

McIsaac 198 1). Distributive issues involve property and

support, or the “assets” of the marriage, which need to

be distributed on the basis of competing principles of

equity, adequacy and efficiency. Integrative issues deal

with on-going relationships, such as parenting, where

the parties must continue to work together, albeit in a

different manner.

The rules

of

divorce effect how the parties bargain in

the “shadow of the law” (Mnookin 1979), and the

attorney represents the parties adverse interest in the

dispute. Because divorce is such a complex and intensely

personal dispute, many authors including this one, feel

attorney representation is essential to protect the inter-

ests of the parties, particularly around distributive is-

sues, and to compensate for power imbalances and the

role

of

diminished capacity in the resolution

of

conflict

in divorce. Most divorces are resolved outside a court-

room through negotiation between the parties. In

Los

Angeles, less than two percent of filings ever go to trial

over custody, and less than 10 percent go to trial over

financial issues (McIsaac

&

Said 1983). Yet very little

attention has been paid to how these roles are played out

9

in the process, and to what principles

of

conduct will

lead to the best results. This article attempts to explore

these issues and to develop some general principles of

conduct where the attorney becomes an agent in the

problem-solving process, representing their client’s in-

terests and is not merely a hired gun attempting to gain

an advantage in litigation for their client (Menkel-

Meadow 1984). These principles have profound implica-

tions

for both attorneys and mental health professionals,

permitting them to abandon their traditional adversary

roles towards one another and instead entering into a

synergistic partnership where the

values,

knowledge base

and codes of each discipline strengthens the other and

creates an environment for creative problem-solving.

FOUR FAMILIES

Family

No.

1

The first family described was seen in the Concilia-

tion Court in 1984. Their dispute was particularly in-

tense, involving over

two

years of litigation, and included

with both distributive and integrative issues. The father

in his family of origin was the son of

a

wealthy industri-

alist. The precipitating event in the disintegration of the

marriage was the father’s unsuccessful campaign for

political office. The mother in this family had married

the father when she

was

18. She was a very attractive,

intelligent, and dependent partner, characteristics she

maintained

in

the divorce, as well as the marriage.

Four children were involved in the custody dispute:

the two oldest were adopted

boys-18

and 20 years of

age. The mother was alienated from them, and attrib-

uted their semi-delinquent behavior to the father, who

had only nominal control over them. The daughter,

15,

was aligned with mother, and refused to see the father.

She was doing very well in school academically and

socially. The youngest boy, 7, had a good relationship

with both parents and was the center

of

the custody

dispute.

The family became involved in the mediation proc-

ess when the daughter called the opposing attorney, who

represented her father, and asked for help in resolving

the “craziness” in her family. She reached out to this

attorney because this attorney was a very effective and

emphatic woman with whom the daughter could iden-

tify. The daughter also probably reached out to this

attorney because the attorney seemed interested in re-

CONCILIATION COURTS REVIEW/VOLUME

26,

NUMBER 2/DECEMBER

1988