pdf - dissertation publication

EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE: ACASE STUDY.

Evaluating Procedural Justice Criteria For Parents who Settle Child Custody Matters Pre-trial:A Case Study

Lisa K. Askinazi, Ph.D.

Adelphi University School of School of Work Garden City, New York

Dr. Elizabeth Palley, Ph.D. Dr. Patricia Joyce, D.S.W.

Dr. Diann Cameron Kelly, Ph.D.

UMI Number: 3579706

All rights reserved

INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted.

In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed,

a note will indicate the deletion.

Di!ss0?t& iori P iib list’Mlg

UMI 3579706Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author.

Microform Edition © ProQuest LLC.All rights reserved. This work is protected against

unauthorized copying under Title 17, United States Code.

ProQuest LLC 789 East Eisenhower Parkway

P.O. Box 1346 Ann Arbor, Ml 48106-1346

ABSTRACT OF THE DISSERTATION

Evaluating Procedural Justice Criteria For Parents who Settle Child Custody Matters Pre-trial: A Case Study

Lisa K. Askinazi, Ph.D.Adelphi University School of School of Work

Garden City, New York

Professor Elizabeth Palley, Ph.D., Chair

By gathering interview data from parents, attorneys, judges and their law secretaries, this

study examined the extent to which the manner in which child custody disputes are settled in the

civil court system provides a fair venue for parents. It further examined the specific factors noted

by Lind and Taylor (1988) that contribute to a fair legal procedure. These factors include voice

opportunity, respect, neutrality, and trust. An explanatory case study design was used and the

data was analyzed using pattern matching (Yin, 2009). Finding suggest that Lind and Taylor’s

group value model of procedural justice provides an important lens to understand the impact of

pre-trial practices on parents related to child custody. The findings also suggest that time and cost

(which fall outside of Lind and Taylor’s model) influence people’s perceptions of procedural

justice.

DEDICATION

To Ethan and Zoe

my Sun & Star

“Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.”

~M artin Luther K ing, Jr.

“ By perseverance the snail reached the ark.”

~ C harles H. Spurgeon

“The moral arc of the universe bends at the elbow of justice.”

~ M artin Luther K ing, Jr.

INDEX

CHAPTER 1: FOCUS OF INQUIRY 2

Introduction 2Study Purpose 4Study Question 4Background of the Problem 4Definition of the Terms 10Concluding Comments 13

CHAPTER 2: CONCEPTUAL ANALYSIS 15

The psychology o f Procedural Justice 15The Control Model of Procedural Justice 16The Group Value Model 17Conclusion 23

CHAPTER 3: LITERATURE REVIEW 25

How procedural justice and distributive justice dimensions are related 25Key fair Process Predictors 26Process Control (Voice) 26Litigant participation 28Neutrality 34Trust 37Respect 38Procedural Justice and child custody courtroom litigation 39Litigation costs 43Conclusions 45

CHAPTER 4: METHODS 48

Introduction 48Research Design 49Study Sample 50Definition of the Variables 53Variable 1 -Decision Control 53Variable 2-Voice 54Variable 3 -Respect 55Variable 4 -Trust 56Variable 5 -Bias 57Variable 6-Time/Cost 57Other Factors 58Procedure 59Analysis 60 Limitations 60

CHAPTER S: RESULTS 62

Introduction 62Variable 1. Decision Control 63Parental viewpoint - Control over child custody outcomesAttorney viewpoint - Control over child custody outcomes 69

Judge/law secretary viewpoint - Control over child custody outcomes 70

Variable 2. Experience o f Voice in the court process 73Voice Opportunity 73Parent viewpoint - Opportunity for Voice 74Attorney viewpoint - Opportunity for Voice 76Judge/law secretary viewpoint - Opportunity for Voice 78

Variable 3. Experience o f Respect in the court process 82Treatment Parents encounter during the pre-trial stage o f litigation 82Parental viewpoint - Respect 82Attorney viewpoint -Respect 84Judge/law secretary viewpoint - Respect 87Summary 89

Variable 4. Experience o f Trust in others involved in the court process 89Parental viewpoint - Trust 91Attorney viewpoint - Trust 95Judge/law secretary viewpoint - Trust 96Summary 99

Variable S. Feeling o f Bias in the Court Process 99Feelings of Bias in the court process 99Parental viewpoint of Bias 103Attorney viewpoint o f Bias 109Judge/law secretary viewpoint o f Bias 118

Other Factors 128Mediation 128Judge/law secretary viewpoint - mediation 128Attorney viewpoint - mediation 131Summary 132

Bifurcation (Separate child custody from other aspects o f Matrimonial litigation) 133Why bifurcation might improve the processJudicial viewpoint -bifurcation 133Attorney viewpoint regarding bifurcation 134Summary 137

Undue time/cost considerations and Repeat litigation 13 8Judge/law secretary viewpoints 138Parent viewpoint 139

General perceptions o f the justice systemParental view o f the justice system 140Judge/law secretary view o f the justice system 141Attorney view of the justice system 142

Summary o f the Findings 143Concluding Comments 144

CHAPTER 6: DISCUSSION O F THE FINDINGS 147

Introduction 147Control over Outcomes 148Undue pressure to settle absent parental input 149Exclusion/lack of voice impinges on fair process judgments 152Exclusion leads to distrust of others involved in the procedure 153Why Inclusion matters 154Advantage 157Time/cost & repeat litigation 157Conclusion 158

CHAPTER 7: POLICY IM PLICATIONS 160

Inclusion through informal processes 160The Drug Court Model 162Bifurcation/Early hearing 164Dissemination of Procedural Justice research 167Dissemination of Procedural Justice research through Law schools/CLE 168Conduct research to develop more inclusive rules and procedure 169Concluding Comments 170

CHAPTER 8: PRACTICE IM PLICATIONS 171Dignified Treatment 172Educating the Judiciary, Court Staff and Court Administrators 173Expansion o f Social Work practice in the Courts 175As a matter o f practice - litigants must be knowledgeable o f their Agreement before signing 177Obtaining litigant feedback 177Implications for Clinical Social Work Practice 177

CHAPTER 9: FUTURE RESEARCH IM PLICATIONS 179

Summary of Findings 179Use of additional methodological frameworks 180Conduct research in different state courts 180Conduct Quantitative Analysis 181Conduct research examining gender bias 181Research programs that reduce time/cost/leverage 181Implications for other court contexts 183Conduct future research on why so many child custody matters repeat litigation 183Conduct future research on the effect o f the attorney/client rapport onlitigants procedural justice perceptions 184Conduct future research on the new counsel fee/spousal maintenance rules 185

REFERENCES 186

CHAPTER 1: FOCUS OF INQUIRY 2EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE.

CHAPTER 1: FOCUS OF INQUIRY

Introduction

This study examined our civil justice system from the perspective of procedural

justice, which is an individual’s perception about the fairness of court processes

(Thaibaut & Walker, 1975; 1978; Lind & Tyler, 1988; Tyler, 1988, 1994; 2000).

Procedural justice offers a paradigm from which to consider the fairness of our legal

system, because a large body of research has shown that perceptions about fair processes

are critical to peoples’ assessments of legitimacy of the institution providing justice

(Blader & Tyler, 2001; Brentano, 2001; De Cremer & Blader, 2006; Tyler, 2006; Van der

Tom,Tyler & Jost, 2011; Rankin & Tyler, 2009), and deference to legal authority

(Thibaut & Walker, 1978; Tyler & Folger, 1980; MacCoun & Tyler; 1988; Tyler; 1990;

Brentano, 2001; Tyler & Huo, 2002; Wenzel 2002; Hollander-Blumff & Tyler, 2008;

Murphy & Tyler, 2008; Blader & Tyler; 2004; Rankin & Tyler; 2009; Berman & Gold;

2012). The current study explored some of the central features of civil litigation of

contested child custody matters, highlighting aspects of the system that are likely to affect

parent-litigants’ perceptions of the fairness of court processes experienced at the pre-trial

stage of child custody litigation, either positively or negatively. Research focused on

parents who settle child custody disputes prior to the commencement of a formal

courtroom hearing, because most cases that enter the civil justice system settle (Galanter

& Cahill, 1994; Matrimonial Commission Report to the Chief Judge of the State of New

York, 2006).


The body of procedural justice literature typically considers procedural justice

from the perspective of disputants. This research broadened analysis to encompass

perceptions of access to justice or a fair procedure, not only from the viewpoint of

disputant-parents, but also from the perspective of other important legal actors who are

involved in child custody litigation, including experienced matrimonial attorneys, judges

and their law secretaries. This research examined whether the procedural justice paradigm

is sufficient to fully encompass fairness considerations for those who enter pre-trial

agreements. It explored whether there might be other considerations that fall outside the

procedural justice framework in relation to litigant access to a fair and just procedure,

such as time and cost.

Historically, there have often been situations where one spouse controls the bulk

of the funds and income as well as having knowledge about the financial assets, which

creates a severe power imbalance between the monied and non-monied spouses during

civil matrimonial litigation (Matrimonial Commission Report to the Chief Judge of the

State of New York, 2006). In order to correct for this power imbalance, in October 2010,

the appellate courts charged the trial courts with an effort at leveling the financial playing

field between monied and non-monied spouses. D.R.L.§237 creates a presumption that

the court must award counsel fees to the lesser monied spouse in an effort to remedy

potential power imbalances. Despite that the courts are striving to increase access to a

fair and just procedure, there are continuing complaints that civil litigation, and

particularly child custody litigation, takes too long and costs too much. Backlogs and


delay have been decried as being an impediment to accessing justice in criminal courts as

well (Glaberson, 2013), and might be a prevalent problem in the American justice system

generally.

Study Purpose

This study is concerned with the extent to which the processing of child custody

disputes through a civil court system provides a fair venue for litigant-parents to resolve

child custody disputes at the pre-trial stage. This goal of this study is to expand the social

work knowledge base by examining and identifying factors that are key to litigant

perceptions of a fair and just civil court procedure among parents who settle child custody

disputes at the pre-trial stage of litigation.

Study Question

What are the factors that foster or impinge upon litigant-parents’ access to justice,

or a fair legal procedure, when child custody disputes resolve at the pre-trial stage of

litigation?

Background o f the Problem

Escalating court filings involving civil divorce and domestic relations matters

suggest that Americans have become dependent upon the traditional adversary system to

resolve an array of life crises (Babb, 2008). Divorce rates began to escalate in the United

States in beginning in the late 1960s (Pryor & Rodgers, 2001; Emery, 1999). Though

divorce rates have flattened since the early 1980s and even dipped slightly, they are still

high. In 1992, according to the U.S. Census Bureau, more than 40% of first marriages in


the United States are predicted to end in divorce. Between 1988 and 1995, child custody

disputes between married or unmarried parents increased 43 percent (Ostrom & Cauder,

1996). Between 1984 and 1995, domestic relations matters deluged court calendars

comprising half of all of the civil actions filed nationwide (Ostrom & Kauder, 1996;

Matrimonial Commission Report to the Chief judge of the State of New York, 2006). In

New York State, divorce matters comprise 75% of civil court filings (Report to the Chief

Judge of the State of New York, 2006). A special report on children and the courts

generated by the American Bar Association (1994), the most recent report of its kind,

indicated that one-half of all of the children in this country will encounter the break up of

their parents’ marriage. While these statistics appear dated, they are likely to reflect

current conditions as the divorce rate has remained generally stable since the late 1970s

(US Census Bureau, 2005). The 1994 American Bar Association report indicated that of

the 4.7 million domestic relations cases that involve children, 39% consist of divorces

and 18% involve custody and support cases. This means that more than two million

children are subject to parental litigation annually. This has generated concern by policy

makers and social science researchers alike, over consequences for children’s

development and well-being (Report to the Chief Judge of the State of New York, 2006).

As utilization of the American legal system has grown, settlement of contested civil

matters has increased, and the number of cases that continue to trial has decreased

markedly (Friedman & Percival, 1976; Kritzer, 1986). Most cases that enter the civil

justice system resolve just short of adjudication by a process popularly referred to as


“bargaining in the shadow of the law” (Mnookin & Komhauser, 1979). The high cost of

bringing an action all the way to a trial has led some to hypothesize that trials represent

mistakes, breakdowns in negotiations or a failure of the justice system (Cooter, Marks &

Mnookin, 1982; Gross & Syverud, 1991; Trubek, Grossman, Felstiner, Kritzer & Sarat,

1983). They further hypothesize that trials leave litigants worse off than if a settlement is

reached. The emphasis courts have placed on encouraging settlements and discouraging

trials implies that the judicial system agrees that trials are mistakes or represent a failure

of the system (Korobkin & Guthrie, 1994). Like other civil court cases, the vast majority

of child custody disputes that enter the civil justice system resolve with no civil ruling

(Matrimonial Commission Report to the Chief Justice of New York State, 2006). Further,

the movement of child custody matters through the civil justice system is sluggish, costly,

and settlement of child custody matters generally occurs only after substantial financial

and emotional costs have accrued (Matrimonial Commission Report to the Chief Judge of

the State of New York, 2006).

This study is concerned with the quality of procedure that parent-litigants

encounter during civil divorce litigation when child custody is an issue. Are people

walking away from the courthouse with the sense that the procedure that produced a child

custody settlement was fair? Did they feel that they had access to justice? Some data from

a study conducted by Brentano (2001) examined parental perceptions of procedural

justice (a fair procedure) and the parent and child adjustment to divorce. Findings from

Brentano’s (2001) study demonstrated a direct link between parents’ experience of a fair


courtroom procedure and their compliance with the custody decree after divorce.

Brentano (2001) also found a correlation between parents’ experience of a fair courtroom

procedure and lower levels of post-divorce conflict and infighting. The converse was true

for parents who reported that they encountered an unfair procedure. Brentano’s (2001)

research supports a wide body of procedural justice literature that link people’s

experience of a fair courtroom procedure with acceptance of, and compliance with,

decrees that flow from procedures involving a decision maker (Thaibaut & Walker, 1978;

Tyler & Folger, 1980; Greenberg & Folger, 1983; Lind & Tyler, 1988; MacCoun &

Tyler; 1988; Lind, MacCoun, Ebener, Felstiner, Hensler, Resnik & Tyler, 1989; Tyler

1990, 1994, 1997, 2006; 2012; DeCremer & Tyler, 2007; Hollander-Blumhoff & Tyler,

2008; Rankin & Tyler, 2009; van der Toom, Tyler & Jost, 2011). As mentioned earlier,

however, most matters settle before they ever reach a courtroom hearing.

It is important to look at the processes that move matters toward settlement prior

to a courtroom hearing, because settlement generally assumes that litigants maintain

control over the resolution of their dispute. In other words, there is no outcome unless the

parties agree. It also assumes that the people who enter into their own agreements are not

subject to the whims of a third-party decision maker. This study will evaluate whether the

procedural justice paradigm apply to litigants who settle child custody disputes in a

pre-trial atmosphere despite the implied consensual nature of settlement. It will also

evaluate whether there might be other factors that influence parental perceptions of a fair

legal procedure that fall outside of the procedural justice paradigm.


The civil justice system is expected to deliver to the public a fair and just procedure

in which to resolve disputes. Access to justice within the context of the courts and within

the legal arena has implications for both social and economic justice. Countless families

are turning to the American legal system for assistance in resolving an array of family life

crises. This is evidenced by the fact that domestic relations matters comprise more than

half of all of the civil filings nationwide, and divorce matters comprise a majority of civil

court matters in New York State (Matrimonial Comission Report to the Chief Justice of

the State of New York, 2006). “Higher caseloads do not reflect a heightened appetite for

adversarial combat; they represent people trying to cope with problems in a given array of

remedial alternatives” (Galanter, 1986, p. 38).

Thus far, in the area of law and mental health, Therapeutic Jurisprudence (Wexler,

1990) has been used by researchers as a framework for evaluating law and social policy.

Therapeutic Jurisprudence posits the law is a social force that affects individuals who

encounter the legal system either positively (therapeutically) or negatively

(anti-therapeutically). In essence, the legal rules, process and actors have potential

unintended adverse side effects beyond the win or lose outcome of a case (Wexler, 1990;

Winnick and Wexler, 2003). Therapeutic jurisprudence encourages researchers to

evaluate the therapeutic or anti-therapeutic consequences that the law, legal processes and

legal actors have upon the public (Madden and Wayne, 2003). Some social work

researchers have used this theory as a frame for conducting studies in the field of law and

mental health (Madden and Wayne, 2003). While Therapeutic Jurisprudence offers values


consist with the field of social work, it does not take into account issues of fairness for

the volume of individuals who are now pass through the civil court system.

There is wide a body of literature that recognizes that fairness is important to

people’s acceptance of legal orders, and which suggest that people care about the fairness

of procedures used to deal with the problems that bring them into court (Thibaut &

Walker, 1975; Kitzman & Emery, 1993; Brentano, 2001; Tyler & Lind, 1988; Tyler,

1990; 1994; 2000; 2006; 2012; Blader & Tyler, 2003; Blader, 2006; Frazer, 2006;

DeCremer & Tyler, 2007; Hollander-Blumhoff & Tyler, 2008; Hollander-Blumhoff 2011;

Blader & Chen, 2012). Data from Brentano (2001) demonstrates a link between parents’

perceptions of procedural justice derived from their courtroom experience and subsequent

effects upon an array of family adjustment factors (of which compliance with the custody

order and parental conflict and infighting were reported to be particularly vulnerable to in

the long term). If assertions contained in the wide body of procedural justice literature are

correct, then whether an individual is provided with access to justice and the kind of

justice that is experienced may translate into long term consequences for the health, safety

and welfare of families who utilize the justice system.

The social work profession has long been committed to the values of social and

economic justice (NASW, 2008). Litigant access to justice, or a fair procedure is a form

of social justice, - a core social work value. Social work researchers, however, have

contributed minimally to our understanding of the role of justice in the field of law and

mental health (Ashford and Holschuh, 2006). We have little knowledge of the quality of


civil court processes and procedures afforded to parent-litigants as they pass through a

traditional adversary system toward settlement. Examination of access to justice, or the

quality of processes and procedures people are subject to within the American justice

system, particularly involving the pre-trial phase of litigation, remains an untapped area

for the advancement of social work knowledge. With the expansion of social work

practice in the courts, social work professionals are in a unique position to make a

substantial contribution to the building the social work knowledge base within the legal

arena. Ultimately, findings from social science inquiry can play an important role in

informing the contribution to a knowledge base that would inform and facilitate fair

policy and practice within the courts, which this study endeavors to accomplish.

Definition of the Terms

Procedural Justice is concerned with the fairness of dispute resolution procedures.

A vast body of literature links peoples’ encounter of a fair procedure with long term

acceptance of and compliance with decisions that are made by an authority (Thibaut &

Walker, 1975; 1978; Tyler & Folger, 1980; Pruitt, Peirece, McGillicuddy, Welton &

Castrianno, 1993; MacCoun & Tyler; 1988; Tyler; 1990; Brentano, 2001; Tyler & Huo,

2001; Wenzel 2002; Hollander-Blumff & Tyler, 2008; Murphy & Tyler, 2008; Blader &

Tyler; 2009; Rankin & Tyler; 2009; Berman & Gold; 2012). The desire for the experience

of procedural justice is so profound that litigants’ perceptions involving fairness, or the

encounter of a fair procedure, affect how they view the decision that flows out of the

dispute resolution (Tyler, 2001, 2012; van der Toom, Tyler & Jost, 2011). It also forms


their perception about the legitimacy of the institution or agency providing the process

(Blader & Tyler, 2001; Brentano, 2001; Decremer & Tyler, 2007; Rankin & Tyler, 2009;

Tyler, 2006, 2012; Van der Tom, Tyler & Jost, 2011).

Procedural justice suggests that the way in which litigants regard the justice

system is related more to their perceived fairness of a procedure than to fairness of the

outcome of a procedure. In other words, even those individuals who “lose” their case will

view the system favorably if they feel the outcome was arrived at by way of a fair

procedure (Lind & Tyler, 1988; Tyler & Blader, 2000, 2003, 2009). The procedural

justice literature has identified four primary elements of procedure forjudging fairness

that cut across culture and gender: 1. There must be an opportunity for the disputant to

have an adequate “voice” throughout the process; 2. the disputant must perceive that the

authority can be trusted; 3. the disputant must perceive that the process must be neutral

and free of any bias; and 4. the disputant must be treated with respect (Lind and Tyler,

1988; Tyler, 1994; Tyler 2000; Tyler and Blader 2000; Tyler and Huo, 2002). The four

above-mentioned fair process factors, combined with decision control (the ability to

directly influence decisions that are made), and the protection of individual rights have

been found to increase individual satisfaction with decision making processes (Lind &

Tyler, 1988; Tyler, 1994, 2000; Tyler & Huo, 2002).

The concept of child custody litigation refers to a parent’s attempt to establish a

custody and visitation arrangement by commencing a civil court action. The terms legal

system, civil justice system and court setting will be used interchangeably, and refer to


the legal processes that parents encounter during the pre-trial stage of child custody

litigation. The traditional adversary system is a legal setting where two advocates

represent their clients’ positions before an impartial person, typically a judge, who is the

finder-of-fact, and strives to determine the truth of a case. This study seeks to highlight

peoples’ experience of the fairness of legal processes occurring in a traditional adversary

system at the pre-trial stage of litigation, not in courtroom litigation, and not in alternative

dispute resolution. Thus, parent-litigants who experienced a hearing or who were referred

to mediate their child custody disputes were not included. Further, "Access to justice" is

a term that can be defined in different ways. The movement to “increase access to justice”

has taken different directions, including the development of less formal forms of dispute

resolution including mediation, and arbitration, to simplification of legal processes, and

the progress of in-court assistance to the unrepresented (Zimerman & Tyler, 2010). The

definition of access to justice or a fair procedure for the purpose of this study will refer to

an individuals’ experience of the fairness of processes and procedures occurring in a

traditional civil court setting that resulted in settlement of child custody cases. In essence,

do parents feel the system that encouraged them to settle their child custody dispute was

fair? Does the civil justice system provide a fair venue in which their rights are respected?

These concepts underpin the procedural justice theory.

Concluding Comments

One of the most significant and replicated social science findings in the area of

social psychology is that one’s perception of procedural justice affects how an individual


responds to outcomes determined by an authority (Folger, 1977; Folger, Rosenfield,

Grove, and Corkran, 1979; Walker LaTour, Lind and Thibaut, 1974; Blader and Tyler,

2001; Brentano, 2001; Rankin and Tyler, 2009; Tyler, 1990, 2006, 2012). This

phenomena has also been referred to as the fair process effect (Greenberg & Folger, 1983;

Van den Bos, Lind, Vermunt & Wilke, 1997). People are more likely to accept and

comply with outcomes made by an authority, when such outcomes are achieved through a

fair procedure, even when the outcome is not favorable (Tyler & DeGoey, 1995; Lind and

Tyler, 1988; Tyler & Blader, 2000, 2003, 2009; Tyler, 2012).

Thibaut and Walker (1975) were the first to empirically examine procedural

justice effects on peoples’ acceptance decisions made by a neutral, third-party authority.

Their research demonstrates that people’s experience of the fairness of decision making

procedures forms their outcome satisfaction. Subsequently, a wide body of literature has

demonstrated that people are more willing to accept legal decrees and decisions when

they feel that the decisions were arrived at through a fair process (MacCoun, Lind,

Hensler, Bryand, & Ebener, 1988; Kitzman & Emery, 1993; Lind, Kulik, Ambrose, & de

Verr Park, 1993; Pruitt.et al., 1993, Brentano, 2001; Blader and Tyler, 2001; Tyler, 1997,

2000, 2006, 2012). Fair process effects have been demonstrated in a variety of field

settings involving decisions made in courtroom trials, in encounters with police, in

arbitration ( Tyler and Folger, 1980; McCoun & Tyler, 1988; Tyler, 1990; Shapiro &

Brett, 1993; Kitzman & Emery, 1993; Lind, Kulik, Ambrose, & De Vera Park, 1993;

Hollander-Blumhoff & Tyler, 2008; Syrett, 2011). The influence of procedural justice on


litigant perceptions and future behavior has been analyzed in a variety of court contexts

including drug courts, community courts, family courts and small claims courts

(Brentano; 2001; Frazer, 2006; Kitzman & Emery; 1993; O’barr & Conley, 1990; Porter;

2011; Rossman et al., 2011; Berman & Gold, 2012).

Researchers have begun to examine the effect of mediation participants’ treatment

of one another based upon their procedural fairness perceptions (Pruitt, Pierce,

McGillicuddy, Welton and Castrianno, 1993; Welsh, 2001). There is also bourgeoning

experimental data documenting fairness in the context of simulated attorney negotiations

(Hollander-Blumhoff & Tyler, 2008). This suggests that fairness considerations are also

likely to apply to an individual’s encounters when disputes are resolved through

settlement.

Little is known about the relevance of people’s encounter of a fair legal procedure

when disputes that are brought to court settle prior to the onset of any formal courtroom

litigation. Only two studies (Brentano, 2001; Kitzman & Emery, 1993) have looked at the

effects of procedural and distributive justice among parents involved in child custody

conflicts. Findings from these studies will be further detailed in chapter III of this paper.

CHAPTER 2: CONCEPTUAL ANALYSIS 15EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

CHAPTER 2: CONCEPTUAL ANALYSIS

The Psychology o f Procedural Justice

The idea that laws and legal proceedings must be fair is known as due process.

The psychology of procedural justice provides an important paradigm from which to

consider the fairness of our legal system that suggests a need to focus not only on the

outcome of a dispute, but also on the fairness of the procedures that lead to the outcome.

Procedural justice provides a frame for understanding why people accept and adhere to

decisions made by an authority. It posits that an individual’s perception of procedural

fairness is more strongly influenced by their subjective experience of dispute resolution

processes than by the outcome of the dispute. Thibaut & Walker's (1978) developed a

control model of procedural justice that suggests that the value of procedural justice is

related to the fairness of the outcome. Tyler & Lind (1988) suggest the way people are

treated by a decision making authorities affects their perceptions of fairness independent

of whether or not they obtain a favorable outcome. The features of a fair procedure are

conceptually distinct from the distributive outcome (Tyler, 1990). Thus, procedures in

and of themselves are more than a means to an end.

The current study relied on Lind & Tyler’s (1988) group value model to examine

how real people encounter justice, or a fair procedure, in a real civil court setting that

generally results in settlement of child custody conflicts prior to the onset of a formal

courtroom hearing. Tyler & Lind’s (1988) model provides a frame to address issues about


litigants actual perceptions of fairness and legitimacy of legal processes with a focus on

the experiences they encounter in a court setting.

The Control Model of Procedural Justice.

The original model of procedural justice was developed by Thibaut and Walker

(1978), and is known as the control model. Thibaut and Walker’s (1978) research shed

light upon the relative contributions of process-control and decision-control. Process

control is the extent to which people feel that they have a voice and control over the

arguments and evidence to be considered during a legal procedure (Thibaut & Walker,

1978). Decision control refers to the disputants’ influence and control over the decisions

that are made (Thibaut & Walker, 1978). In other words, people value procedural justice

solely in light of the effect it has on outcomes. This model of procedural justice suggests

that a fair procedure that provides disputants with sufficient voice will result in a fair,

accurate and just outcome. For example, in a courtroom setting people do not have

control over the decisions that are made, a judge does. Thus, providing litigants with

ample opportunity to tell their side of the story and present facts and information about

the case, gives them indirect control over the outcome because the information provided

might influence the judicial decision. Thus, people might perceive a process as fair if they

feel that they have a voice and are heard particularly when they do not have control over

the outcome. The influence people have over the decisions that are made through process

control (opportunity for voice), is the main factor in achieving a fair dispute resolution

proceeding. When people lack direct control over the outcome (ie. low decision control),


the way in which evidence is presented (ie. process control) becomes crucial to litigants’

experience of justice. In other words, when individuals are provided ample opportunity to

voice their views, they can be more confident that the final decision will be fully

informed and substantively fair. Thibaut and Walker’s (1978) control model was found to

be an incomplete explanation of procedural justice when data revealed that the

opportunity for voice enhanced peoples’ fairness perceptions even when they obtained an

unfavorable outcome (Lind, Kanfer & Early, 1990; Van den Bos, 1999).

The Group Value Model o f Procedural Justice.

Lind & Tyler’s (1988) research built upon Thibaut & Walker’s (1975; 1978)

procedural justice research. They developed a concept known as the Group Value Model.

This non-control perspective of procedural justice values process as it relates to the role

of a human being in society rather than the type of outcome achieved. Lind & Tyler

(1988) suggest that people care about their relationship with the third party decision

maker. This means that people are more concerned with non-control issues such as the

neutrality of the decision-making procedure, trust in the third party, and evidence about

social standing. The premise of the model is that people value membership in social

groups, and their group identification is psychologically rewarding.

People want to belong to social groups and to establish and maintain the social bonds that exist within groups. The groups that people identify with and belong to can be either small groups (such as family, friendship, or work groups) or large organizations. In addition, people identify with and belong to local, state, and national legal and political groups. This study focuses on people's identification with their common membership in a legal-political system, which has formalized rules, institutions, and


authorities. Although the legal system is a larger group than a family, friendship, or work group, people nonetheless identify strongly with the legal-political system and feel a striking sense of personal obligation to legal and political authorities (Tyler, 1989, p. 831).

Lind & Tyler’s (1988) research made clear that outcome based theories fall short

of acknowledging other concerns that people have related to their experience of justice

and fairness. In particular, work in procedural justice shows that people are greatly

concerned with the process of social life (Lind and Tyler, 1988).

Social justice is a social concept that exists only in the minds of members of an ongoing interaction, a group, an organization or a society. Hence, justice is a socially created concept that... has no physical reality. It exists and is useful to the degree that it is shared among a group of people (Tyler,2000, p. 117-118).

The group value model of procedural justice is relational and is based upon the

treatment endowed upon people by a neutral, third party, decision maker. Lind & Tyler’s

(1988) research enumerate four determinants of fair treatment that are key to peoples’

perceptions of a fair procedure which include: 1. Whether there is ample opportunity for

voice, 2. whether authorities are neutral and even-handed, 3. whether individuals trust the

motives and intentions of the authority, and 4. whether people are treated with dignity and

respect (Lind & Tyler 1988; 1992; 2000; Tyler 1994; Tyler & Huo, 2002). People will

ultimately use the treatment they encounter by a decision maker to draw inferences about

their status in the social hierarchy of a group (Lind & Tyler; 1988; Tyler, 1988, 2000). In

essence, people care about justice because they want to maintain a high status within a

group and use how they were treated by the decision maker to evaluate their group status.


In other words, a fair process conveys the sense that a person is a valued part of the

procedure, and he or she feels respected by the decision making authority which leads the

person to perceive a sense of status and standing within the group. An unfair process

conveys the sense that a person is not a valued part of the procedure, and subsequently he

or she feels disrespected and even excluded from the group. The cues that people

encounter by a decision maker send powerful messages regarding their status and

standing in society, and go on to validate or invalidate their self-identity, self-esteem, and

self-respect (Lind & Tyler, 1988). When a litigant perceives that he or she is provided

with ample voice opportunity and treated with dignity, the litigant can infer that the

decision-maker is benevolent and trustworthy. Thus, the litigant derives a sense of status

based on the treatment he or she encountered and views the judge as working toward a

decision that supports their interests, even if the decision is not favorable to the person.

It is easy to understand why litigants would care about procedural justice when

they are subject to decisions made by a judge. If they feel they are provided ample

opportunity to tell their side of the story, if they feel that what they said was heard and

considered, if they feel they were endowed with dignified treatment, and the judge was

even handed and showed regard for the case and all involved, then it is easier to trust that

the judge has shown good faith in arriving at a fair resolution despite the outcome. But

what about litigants who settle their court case absent a courtroom hearing? As

mentioned earlier, settlement implies that litigants maintain control over how their

dispute resolves. So. under these circumstances, why would people who enter into their


own agreements even be concerned about whether or not their court experience was

procedurally just? Why would treatment by the court, their attorneys or court appointed

personnel even matter? Further, should courts even be concerned about whether people

experience procedural justice when a vast majority of people involved in civil litigation

freely enter into their own agreements absent any courtroom litigation?

Despite the implied consensual nature of settlement, it is likely that parents view

the court, attorneys, and court appointed personnel as legal authorities. Further, these

legal actors might also have substantial influence over how child custody matters are

settled. During the pre-trial stage of litigation judges and law secretaries conduct informal

case conferences with attorneys off the record. The attorneys often utilize the information

provided by the court and court appointed personnel discussed during case conferencing

to counsel their clients to settle the case in one way or another. Also, an attorney for the

child (formerly known as the Law Guardian) is a court appointed individual who is also

involved in child custody litigation. The attorney for the child advocates for the child(ren)

and takes a position based upon the child(ren)’s wishes (Matrimonial Commission Report

to the Chief Justice of New York State, 2006), and provides feedback to the court during

case conferencing (Matrimonial Commission Report, 2006). In addition, per the

discretion of the court, a forensic custody evaluator may be appointed to conduct an

extensive psychological evaluation. Some argue that forensic custody evaluations should

not be used in evidence because there is not sufficient scientific basis for forensic reports

(Tippins & Wittmann, 2005). Despite the controversy involving the scientific veracity of


forensic reports, they are widely used by the courts and deemed a significant tool in

helping the court reach a decision (Matrimonial Commission Report to the Chief Judge of

New York State, 2006). Case law indicates that the court may use the feedback provided

by forensic custody evaluators and law guardians as criteria to be weighed and considered

in rendering child custody and visitation decisions (Young v Young, 212 AD2d 114;

Neuman v Neuman, 19 AD3d; Miller v Pipia, 297 AD2d; Nicholas T. v Christine T., 42

AD2d 526).

What does all of this mean? Basically, parents are likely to perceive the

individuals involved in their case as legal authorities whose feedback will influence a

judicial determination if the case goes to trial. In reality, the feedback provided by the

judge or legal secretary during informal case conferencing, by the attorney for the child,

by a forensic custody evaluator, and the attorneys is used to move the case toward

resolution, which might have substantial influence over the outcome. So, while parents

appear to be making their own deals, there are actually an array of legal actors involved in

child custody litigation whose feedback might have a strong influence in moving the case

toward resolution in one direction or another. This may leave parents feeling powerless

over their chid custody settlements.

According to a vast body of procedural justice literature, the way in which a

people are treated by a perceived legal authority is extremely relevant to their experience

of procedural fairness. Lind & Tyler’s (1988) group value theory suggest that if parent-

litigants feel they have been respected and provided with dignified treatment by legal


authorities (ie, the court, attorneys and court appointed personnel), this will result in the

sense that they were heard, validated and respected. Ultimately, the sense of status and

respect encountered during the procedure leads people to trust that the outcome of the

procedure was fair regardless of its favorability. The group value model of procedural

justice (Lind and Tyler, 1988) further suggests that this validates their status in society at

large helps to legitimate peoples’ valuations of the court system. On the other hand, it

suggests that if parents feel demeaned by the court, attorneys and court appointed

personnel, they perceive they have been judged as insignificant or inferior in comparison

to the others involved in the legal procedure, and feel marginalized. This will produce a

negative perception of the legitimacy of the disputed outcome, a negative perception of

the perceived legitimacy of the court system (van der Tom, Tyler & Jost, 2011; Tyler,

2001, 2006), and perhaps a negative perception of their overall social standing in society.

In essence, the status litigants perceive based upon the treatment they encounter by legal

authorities involved in their child custody (ie the court, attorneys, and court appointed

personnel) is probably extremely meaningful to their perceptions of whether or not the

procedure is fair (Lind & Tyler; 1988; Tyler 1990, 1994, 2000).

Is it possible that there are other factors relevant to parent-litigants’ experience of

a fair procedure that fall outside of the treatment parents encounter by legal authorities?

For example, what if a mother feels satisfied with the way she is treated by the court and

she is also satisfied with the forensic evaluation report. She believes, however, that the

attorney for the child has misinterpreted the forensic report. If the mother is provided with


ample opportunity to verbalize her viewpoint to the child’s attorney, and is able to clarify

or counter any perceived misinterpretations or bias, she may feel that she has higher status

in the context of settlement discussions. This mother would likely report positive

procedural fairness ratings based upon her encounters with the court, the forensic custody

evaluator, and the attorney for the child. What happens, however, if the attorney and

expert fees deplete the mother’s finances and she feels pressured to settle on a less

favorable custody and visitation outcome than she believes she would have obtained at

fair hearing? Or, what if the time demands placed on both parents to take off work to go

back and forth to court for protracted time, place pressure on them to settle on terms that

they believe do not support the interests of the child, or that might not be viable in light of

the parental dynamic? Time and cost considerations, which fall outside of procedural

justice paradigm, might also play a role in influencing parent-litigants’ perceptions of

whether or not they experienced a fair child custody procedure.

Conclusion.

The process and procedure occurring in a civil justice system should deliver the

experience of a fair procedure. Research in the field of procedural justice has repeatedly

shown that the public desires courts to resolve their disputes in a way that they feel that

justice has been done. Settlement, however, is viewed as a condition of deal making that

occurs exclusively between two parties. The civil justice system is, therefore,

unconcerned with the quality of procedure that people are subject to when they enter into

their own agreements (Hollander-Blumhoff, 2011). What occurs during the pre-trial


stage of litigation is seen merely as assisted talks, bargaining, and fact finding. In reality,

an array of legal actors are involved in child custody litigation whom parents likely deem

to be legal authorities (Hollander-Blumhoff, 2011). Further, the court, court appointed,

personnel and attorneys might have substantial influence over how child custody matters

resolve. Under these circumstances, Lind & Tyler’s (1988) Group value model suggest

that parents who are involved in child custody litigation will care very deeply about the

treatment they encounter by the array of legal actors involved in the child custody

litigation. Using the key antecedents of procedural justice enumerated in Lind & Tyler’s

(1988) Group Value Model (the opportunity for voice, respectful treatment, neutrality,

and trust), this study explored whether the same relational factors that influence

perceptions of procedural fairness during formal courtroom litigation, are also relevant

for parents who settle their child their custody conflicts pre-trial. Research also examined

whether there are other factors, not identified in the procedural justice literature, that

influence parental perceptions of procedural fairness among those who settle in a pre-trial

atmosphere such as time, cost, or any other considerations.

CHAPTER 3: LITERATURE REVIEW 25EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

CHAPTER 3: LITERATURE REVIEW

How Procedural and distributive justice dimensions are related.

Peoples’ experience of procedure and their impressions of the outcome

distribution are a source of justice judgments (Walker, LaTour, Lind, & Thibaut, 1974).

Justice research has shown that measures of procedural and distributive justice are

generally correlated (Tyler, 1994). For example, in a study evaluating parents experiences

of procedural justice in child custody courtroom litigation and subsequent adjustment to

divorce, Brentano (2001) found higher ratings of outcome satisfaction among parents

who reported that they experienced a fair courtroom procedure, while parents’ who

reported that they experienced an unfair courtroom procedure reported less favorable

outcome satisfaction scores. Data from procedural justice research demonstrates that

people’s fairness perceptions can influence their attitude about the outcome even when it

is not favorable (Tyler, 2000, 2012; van derToorn, Tyler & Jost, 2011). For example,

Kitzman & Emery (1993) examined parental satisfaction of child custody dispute

resolution in mediation and form courtroom litigation settings. Kitzman & Emery (1993)

found that men were more satisfied with the outcomes in a mediation setting, even though

men in mediation and courtroom litigation settings generally lost custody (Kitzman &

Emery, 1993). Data from Kitzman & Emery’s (1993) research demonstrated that mens’

greater satisfaction in mediation is related to the sense that they had greater control over

decisions that were made which increased their perception that the procedure was fair and

also resulted in greater outcome satisfaction.


Brockner & Wiesenfeld (1996) suggested that procedural justice matters more

when outcomes are unfavorable. Others have argued that procedural justice effects are

potent regardless of how favorable or unfavorable the outcome is (Walker, LaTour, Lind,

& Thibaut, 1974; Walker, Lind, & Thibaut, 1979; Lind, Lissak, & Conlon, 1983; Tyler &

Lind, 1991; van den Bos, Lind, Vermut & Wilke, 1997; Lind, Kurtz, Musante, Walter, &

Thibaut, 1980; Haunstein, McGamigle & Flinder, 2001). Some research has revealed that

under certain conditions a positive outcome can enhance procedural justice effects as

much as or more than negative outcomes (e.g., Lind & Lissak, 1985; Smith, Tyler, Huo,

Ortiz & Lind, 1998). Hollander-Blumoff & Tyler (2008) found that people were more

willing to accept negotiated outcomes when the procedure was rated as fair, even through

the outcomes themselves were not substantially better.

Key Fair Process Predictors.

1. Process Control (Voice).

A wide body of data reveals that people feel more fairly treated when they are

permitted to participate in the resolution of their dispute by verbalizing their ideas about

what should be done (Thibaut & Walker, 1975; 1978; Tyler & Folger, 1980; Pruitt,

Peirece, McGillicuddy, Welton & Castrianno, 1993; Tyler; 1990; Brentano, 2001; Tyler

& Huo, 2002; Wenzel 2002; Hollander-Blumff & Tyler, 2008; Murphy & Tyler, 2008;

Blader & Tyler; 2009; Rankin & Tyler; 2009; Berman & Gold; 2012). Robert Folger

(1977) identified “voice” as a key element of procedural justice. He defined voice as,

“having some participation in decision making by expressing on’s own opinion.


Thereafter, researchers in the procedural justice field began to refer to “voice” as the

opportunity for an individual to express his or her position prior to a decision being made

(Lind, Kanfer & Early, 1990; Tyler, Rasinski & Spodick, 1985). In other words, voice

provides a disputant with the ability to tell his or her side of the story. Thibaut and

Walker named the opportunity for voice “process control” (Thibaut and walker, 1975).

Voice effects have been demonstrated in studies of child custody courtroom litigation

(Brentano, 2001), in child custody mediation (Kitzman and Emery, 1993; Shapiro and

Bret, 1993); in plea bargaining studies (Houlden, 1980; Tor, Gazel-Ayel & Garcia, 2010)

and in a simulated negotiation setting that sought to mirror a real-world pretrial

negotiation (Hollander-Blumhoff & Tyler, 2008). Further, voice effects have been found

to go beyond the ability of people to assert indirect control over the outcome of a dispute.

Disputants have been found to value the opportunity to express their views to decision

making authorities in situations where they believe that there would be little to no

influence over the final decision (Lind, Kanfer, and Earley, 1990; Tyler, 1988).

Research on the psychology of voice asserts that the experience of voice has

interpersonal or “value-expressive” worth that is independent of influence on the final

decision (Tyler, 1988; 1994, 2000; Lind & Tyler, 1988). Data demonstrates that the

opportunity for voice is salient to the experience of a fair procedure even when a decision

has already been rendered (Tyler & Degoy, 1995). People also need to feel that the facts

and information that they have presented are being giving due consideration by the

decision making authority (Brockner, et al. 2001; van Prooijen, vanden Bos, Wilke,


2007). Thus, data from research on the opportunity for voice demonstrates that the

opportunity for voice has significance well beyond influencing the final outcome of a

dispute. Procedures with opportunities of voice (relative to no voice) are generally

perceived as fairer decision-making procedures (Folger, 1977; Thibaut & Walker, 1975;

Lind & Tyler, 1988; Tyler, 1994; van prooijen, van den Bos & Wilke, 2007). Moreover,

voice is considered to be the most representative procedural fairness manipulation and is.

therefor, also the most commonly used manipulation in experimental research (Tyler,

2000; Van den Bos, 1999; Bauman and Skitka, 2009; van Prooijen, van den Bos &

Wilke, 2007; Fondacaro, Brank, Stuart, Villanueva-Abraham, Leuscher, and McNatt,

2006).

Litigant participation

Findings from procedural justice research conducted in different dispute

resolution settings converge around the point that people greatly value participation and

voice. If people are provided with an opportunity to participate in the resolution of their

disputes they feel more fairly treated (Tyler, 2000).

The opportunity to present one’s case leads people to feel that the forum is more neutral, the authorities more trustworthy and the procedure more respectful of them and their rights. For all of these reasons litigants are more likely to accept decisions and evaluate the legal system more favorably after they have experienced voice” (Zimmerman & Tyler, 2010,p. 8).


The structure of processes occurring at the pre-trial stage of civil litigation provide

litigants with extremely limited participation because the courts rely heavily on attorney

representation (Hollander-Blumhoff, 2011; Zimerman & Tyler, 2010). Court rules and

procedures do not assign litigants much direct participation (Hollander-Blumhoff, 2011,

Zimerman & Tyler, 2010). Nor do the rules and procedures provide litigants with an

opportunity to speak before the court outside of giving testimony while on trial

(Hollander-Blumhoff. 2011; Zimerman & Tyler, 2010). The Federal Rules of Civil

Procedure essentially block litigants from any opportunity to speak directly to the court

outside of providing testimony at a formal courtroom hearing (Zimmerman & Tyler,

2010). This means that the attorney acts as the litigant’s voice, and this might cause

litigants to feel as if they are “invisible” throughout the court procedure (Resnik, 1991, p.

61). There is, however, no evidence at this point indicating that indirect participation in

court through an attorney diminishes litigant perceptions of voice (Zimerman & Tyler,

2010). There remains a need to more closely examine the specific impact of people’s

valuations of their court experiences, as well as the effect representation has upon

people’s experience of voice opportunity.

While it is understood that attorneys play a key role on behalf of litigants during

civil litigation, there is no clear data regarding the effects of procedural fairness

assessments by attorneys on clients. Nor is there any clear data regarding the relationship

between specific lawyer behavior and client perceptions of a fair procedure (Hollander-

Blumhoff, 2011, p. 8). An exploration of peoples experience of procedural fairness in


civil litigation, however, would be incomplete without acknowledging the role attorneys

play in representing their clients, and how the quality of the litigant/attorney rapport

might influence disputants’ perceptions of procedural justice. Whether people are

represented or unrepresented has generally not been studied within a procedural justice

framework, and the issue of legal representation has not been substantially investigated

(Zimmerman & Tyler, 2010, p. 6). Procedural justice research, however, has consistently

affirmed that the ability to provide important facts and information before the court, with

our without legal counsel, is essential to designing procedures that people perceive as fair.

Some data suggest that litigants perceive attorneys and judges fall short of

hearing and understanding their main concerns. Barclay (1996) conducted a study that

evaluated a group of ninety-five people who appealed their court case in three states. Data

from Barclay’s (1996) research, found that 27% of litigants who opted to appeal their

case without legal representation, did so in an effort to force the court to address

important issues that were not dealt with during the initial court action. In other words,

27% of litigants who appealed and proceeded to the appellate court with no legal

counselor felt that their attorneys and the court failed to hear and understand their primary

concerns during the initial court action. Barclay (1996) suggest that litigants’ decision to

go to the appellate court unrepresented was used as a strategy that would provide them

with, “the ability to place directly before the court the issues that they [the litigants

themselves] identified as most salient” (Barclay, 1996, p. 919). Findings from Barclay

(1996) suggest that disputants who feel their issues and concerns are not adequately


addressed by attorneys and judges during an initial court action might repeat litigation so

they can directly convey key issues to the court. Thus, if a disputants’ main concerns are

disregarded by legal authorities (if they are not heard), the disputant might be more likely

to repeal and self-represent to ensure key issues involving the case are addressed.

The need for litigant participation is also reflected in earlier research involving

litigant satisfaction with different civil court procedures. Lind et al. (1990) conducted a

study comparing peoples’ satisfaction of tort litigation in three different civil court

venues. To explore this issue, Lind et al. (1990) interviewed litigants involved in

personal injury cases in three state courts whose cases had been resolved in different civil

court venues: 1. in a court room trial, 2. in court-annexed arbitration a procedure in which

a lawyer-arbitrator hears the case and offers a non-binding judgement), 3. in negotiation

and, 4. injudicial settlement conferences (a procedure in which a judge attempts to assist

the attorneys in settling the case). Negotiation and judicial settlement conferencing are

informal, consensual processes. Arbitration and trial are formal procedures where a

decision is rendered by a Judge or Arbitrator. Of these different legal dispute resolution

venues, litigants ranked satisfaction in negotiation and judicial settlement conferencing

settings lowest. This was an interesting result because prior to this finding it had been

suggested that,

Settlement whether accomplished by the parties and their counsel alone or assisted by judges or mediators, results in greater satisfaction because the litigants are more involved in the settlement process and because negotiated outcomes can be crafted to fit the litigants’ needs (Lind et al.,1990, p. 961).


The interviews focused on litigants’ evaluations of their experiences with the

court, which included their perception of procedural fairness and their satisfaction with

the outcome. Participants whose case went to trial reported more satisfaction with the

procedure and said the procedure was more fair than those who experienced the other

procedures (Lind et al, 1990). Further, most litigants in the trial and arbitration

procedures described the process as dignified, in contrast to most litigants in the judicial

settlement conference group who described the process as undignified. Findings from

Lind et al. (1990) suggest that preparing litigants for trial and their experience of

providing testimony while on trial enhanced participation and voice opportunities during

trial and arbitration, which subsequently enhanced their perceptions of procedural fairness

and satisfaction. The judicial settlement conferencing was an informal procedure and did

not involve litigant participation. Lind et al. (1990) suggest that the experience of

participation and voice in more formal legal settings of arbitration and at trial, resulted in

enhanced perceptions of fairness and satisfaction among litigants who participated in

more formal legal procedures, compared with litigants whose case was resolved through

judicial settlement conferencing, which did not provide litigants with the opportunity to

participate or to have a voice and which they felt was a less dignified procedure. The Lind

et al. (1990) study revealed that achieving settlement through judicial case conferencing

were not as satisfying as previously thought mainly because of the less formal procedures

excluded litigants from participating. On the other hand, the more formal procedures of

arbitration and a hearing were inclusive of litigants. They participated through trial


preparation, and by giving testimony on the record. So, inclusion in the procedures lead to

more formal court processes of arbitration and hearing that lead to substantially higher

ratings of satisfaction among litigants in those groups. Litigants were excluded from

participation in negotiations and judicial settlement conferencing. In fact, litigant

participation was viewed by the court and attorneys as “unnecessary and even counter

productive” (Lind et al. 1990, p. 963).

Research involving people’s perceptions of procedural fairness in different dispute

resolution venues does not provide clear answers because it is hard to evaluate different

processes and procedures. For example, in (1993), Kitzman & Emery conducted a field

study that used quantitative analysis to examine the relative effects of procedural and

distributive justice on parental satisfaction of child custody dispute resolution in

mediation and litigation settings. Seventy one couples from one court house were

randomly assigned to mediate or litigate their child custody dispute. Once custody was

resolved, parents in both groups were interviewed. A standardized measure was used to

rate satisfaction with their court experience. “Multiple regression analysis showed that

procedural factors (decision control and respect) and distributive factors (feelings of

winning what one wanted) were equally influential for parents’ satisfaction” (Kitzman &

Emery, 1993, p. 553)”. Mothers who participated in this study generally petitioned for

sole custody and obtained a favorable outcome in both groups. Obtaining a favorable

custody outcome and respectful treatment were equally important for women, and women

were generally more satisfied with a formal courtroom hearing then in mediation. Men,


who generally lost custody in both settings, preferred the experience of direct

participation in mediation to formal litigation, because in mediation they felt that they

influenced the process and outcome.

The Administrative office of the California Courts (2005) undertook research

involving 2414 California State residents who were randomly selected to participate in an

interview about their trust and confidence in the California state courts. The California

(2005) study asked the public through random phone calls, whether they had been

involved in a court action or not, to evaluate courts on a number of different dimensions.

Participants in the California (2005) study said that the courts are very fair in providing

dignified and respectful treatment. Participants, however, said that the California courts

were not fair because of a lack of participation and a lack of voice. Data from this study

suggest that people in California generally feel that the courts don’t listen. Thirty eight

percent of people who actually went to court said that the courts don’t listen, in contrast

to thirty percent of people who had not gone to court who said that the courts don’t listen.

This means that those people who had actually gone to court in California, were even

more likely to report the courts don’t listen than if the person had not gone to court.

2. Neutrality.

The procedural justice literature demonstrates that people believe that decisions

made by an authority should be based upon rules and facts, and not on the personal bias

or personal world view of the decision making authority (Lind & Tyler, 1988; Tyler 1989;

1994; Tyler & Blader, 2003). “People are influenced by judgements about the honesty,

CHAPTER 3: LITERATURE REVIEW 3 5EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

impartiality, and objectivity of the authorities with whom they are dealing” (Tyler, 2000,

p. 122). In the experience of a fair procedure, litigants seek out a procedure that provides

an “equal playing field” in which they have a sufficient opportunity to counter any

perceived bias (Lind & Tyler, 1988; Tyler 1989, 1994). Litigants want a dispute

resolution venue in which neither party is at an unfair disadvantage, and when an decision

making authority follows and applies impartial rules, and makes decisions based upon the

facts and information presented, then they perceive that the procedures are fair (Lind &

Tyler, 1988; Tyler, 1989; 1994; Tyler & Blader, 2003).

The American justice system has set forth rules to make every effort that bias be

averted injudicial decision making procedures. The civil justice system aims for

transparency so that litigants have sufficient information to realize that judges and legal

processes and procedures are impartial (Hollander-Blumhoff, 2011). Judges are required

to recuse themselves from matters where there may be a conflict of interest. [U.S.C. §

455(a) (2006)]. Courts suggest that recusal is important even when there is no technical

conflict of interest, because it is imperative that courts maintain the appearance of

neutrality, and that judges remain free from any possible bias (Caperton v. A.T.Massey

Coal Co., 129 S. Ct. 2252, 2262 (2009); Liljeberg v.Health Servs. Acquisition Corp., 486

U.S. 847, 865 (1988)). The appearance of bias must be averted in order to preserve

peoples’ trust and faith in the justice system (McGhie Land Title Co., 549 F.2d 1358,

1361 (10th Cir. 1977).


Bias, as it works itself out in real time, however, is a vastly more complex and

subtle issue (Hollander-Blumhoff & Tyler, 2008). What is a neutral and unbiased

decision maker? Research in the area of political science demonstrates that, in any given

case, judgments about neutrality and absence of bias for a particular judge are, themselves

subject to bias (Pinello, 1999; Edwards, 1998). Some research has described gender bias

in custody decisions (Polikoff, 1982; Chesler, 1986; Hensler, 1993; Grillo; 1991;).

Theoretically, law and case precedent are determinants of judicial decision making,

however, in reality it is not clear which factors are used (Emery, 1999; Settle & Lowery,

1982). In essence, a child custody case demonstrating the same fact patterns might have a

vastly different outcome when heard before different judges, based upon their subjective

world view. In fact, judges personal background characteristics were found to influence

child custody decision making more than the legal statutes (Pearson & Luchesi-Ring,

1982). Some judges with low integrity scores deviated from child support guidelines

(Ellis, 1999). Their age, years of experience and personal world view were found to be

determinants of child determinations, and fact data including psychological evaluations

and the child’s wishes were not. Older judges were more likely to draw on their life

experiences and often disregarded the statutes (Person & Ring, 1982; Weinberg, 1999). If

justices have based judicial determinations on their subjective world view, and biases,

then what about the host of other people involved in child custody litigation? Any such

biases related to the age, gender, cultural background, and personality of the array of legal


authorities involved in child custody, might contribute to people’s experience of bias,

which would influence their perceptions of fairness.

3. Trust

People also evaluate the fairness of a procedure based upon how they perceive the

motives of the decision making authority (Lind & Tyler, 1988; Tyler. 1989; 1994; Tyler

& Blader, 2003). People evaluate whether a decision making authority is benevolent and

demonstrates care and demonstrates care and concern about arriving at a good outcome

(Lind & Tyler, 1988; Tyler, 1989; 1994; Tyler & Blader, 2003) . These elements combine

to shape people’s formulations of whether or not the authority is to be trusted (Lind &

Tyler, 1988; Tyler. 1989; 1994; Tyler & Blader, 2003). It is important to note that a

primary antecedent of trust is justification (Tyler & Blader, 2000). Litigants must

understand that a decision making authority has listened and given substantial

consideration to the decisions that have been made (Lind & Tyler, 1988; Tyler, 1989;

1994; Tyler & Blader, 2003).

Data involving the issue of cooperation with authorities (e.g., De Cremer & Tyler,

2005; De Cremer &Van Vugt, 2002; Tyler & Blader, 2000; Van Vugt &

De Cremer, 1999) has identified two important psychological antecedents of cooperation

(see De Cremer & Tyler, 2005), including trust in the authority and procedural fairness.

Previous studies have shown that the experience of a fair procedure promotes

cooperation, or compliance with the outcome, however, this occurs mainly when the

authority is trusted (De Cremer & Tyler, 2005). Authorities serve an important function in


regulating coordination and cooperation (see De Cremer & Tyler, 2005, for a review).

Procedural fairness can thus be seen as another important motivational tool to shape and

foster cooperation (Tyler, 2012, van der tom, Tyler & Jost, 2011; Rankin & Tyler, 2009).

Trust in the decision maker seems to affect litigant compliance and cooperation (De

Cremer & Tyler, 2005, Tyler, 2006). In other words, if people trust the decision maker,

they are more likely to view the process as fair (De Cremer & Tyler, 2005; Tyler, 2006).

4. Respect.

Litigants value having their rights respected and their status in society, known as

standing (Tyler & Lind, 1988; Tyler, 1994; 2000). In other words, the extent to which a

litigant feel that he or she is respected also affects his or her perception of fairness of the

overall process (Tyler & Lind 1988; Lind, et al, 1993). For example,

When the police (a legal authority) harass minorities or treat them rudely, they communicate to members of those groups both their low social standing and the fact that the authorities may not protect them and may, in fact, even hurt them. ... If people are treated rudely, they know that the authority they are dealing with regards them as having low status within the group. Conversely, polite and respectful treatment communicates that the authorities involved regard them as having high status in the group.Similarly, if authorities show respect for individuals’ rights as a group member, individuals gain knowledge that those rights will be respected, whereas abuse of one's rights brings their existence into question and leaves people feeling unprotected (Tyler & Lind, 1988, p. 832).

Procedural justice research suggest that litigants’ fairness formulations are

influenced by how a third party authority treats them on an interpersonal level (Lind et al,

1990; Tyler, 2000; Blader & Chen, 2012). Specifically, litigants evaluate the degree to

which an authority treats them in a dignified and polite manner (Lind, et al., 1989).


People are more likely to defer to decisions when they perceive that the authority is acting

with the intention of achieving justice, which is a relational concern (Tyler, 1988; Tyler &

Huo, 2002; Blader & Chen, 2012). Blader & Chen (2012) suggest the likelihood of

people reaching an integrative agreement relies largely on a persons’ perception that they

encountered high quality, trustful interactions with an authority, based upon the

attentiveness and concern that an authority proffers (p. 1009). This supports earlier

procedural justice findings suggesting that the way people perceive they are treated by a

high ranked decision maker not only influence their perception of procedural fairness, but

also influences their perception of the value of agreements reached. The status people

perceive derived from interpersonal interactions with decision makers is most important

when people feel that they have little or no power in a group (Blader & Chen, 2012).

Procedural Justice and Courtroom Litigation of Child Custody

Brentano (2001) examined the effect of parental perceptions of the fairness of

formal child custody courtroom litigation and perceptions of the fairness of the child

custody Order, on subsequent compliance with the child custody Court Order, and family

adjustment to divorce. To explore this issue, Brentano (2001) conducted a longitudinal,

repeated measure field study in the Orange County Superior that included 185 parent-

respondents. A series of self-report measures were administered to parents at three points

in time, “Time 1: shortly before a targeted hearing or trial; Time 2: within a month after

the custody hearing or trial, and Time 3: three to six months after the hearing or trial”

(Brentano, 2001, p. 71). Brentano (2001) developed a measure to evaluate parental


satisfaction with the court procedure based upon parents’ perceptions of fairness of their

courtroom experience and the judge (based upon perceptions of unbiased treatment,

respect, voice, trust and decision control) and fairness and favorability of the child

custody outcome. This measure was sent to litigants through the mail within a month

after the trial had begun and agin three to six months later.

Findings from Brentano’s (2001) study indicate that the treatment parents

experienced during formal courtroom litigation was the exclusive predictor of long term

compliance with the court order. Distributive justice made virtually no contribution to

the parental relationship long term (Brentano, 2001, p. 127). Brentano (2001) found that

there were no improvements for problems involving the parental rapport when

experiences of the court process were reported to be poor. In contrast, those who had

reported positive perceptions of fairness not only returned to pre-litigation levels of

conflict, but seemed to be on a continuing path of improvement. If replicable, these

patterns emphasize that the quality of the legal procedure will not only predict

compliance with judicial decrees, but also has the potential to aggravate or assuage

parental conflict long term. Presumably, positive reports of fairness will decrease parental

conflict and infighting around the child and reduce the incidence of repeat litigation

In Brentano’s (2001) study, parents who settle prior to litigation differed from

those who litigated. The settlement group was largely comprised of first time litigators

while the trial group was comprised of parents involved in repeat litigation. Shortly

before the child custody hearing parents in the settlement group were more likely to have


legal counsel then those in the litigation group. Parents in the settlement group were also

more satisfied with their attorney. Within one month of the hearing (Time 2)

representation and attorney satisfaction was no different among settlers and litigators.

One reason the settlement group might have moved from being represented to

unrepresented is because of the costs of protracted child custody litigation. Our civil

justice system ascribes great importance to the right of individuals to participate in legal

procedures, and to have their "day in court”, however, legal rules, processes and

procedures are complex and less accessible without appropriate legal representation. A

conclusion of the New York State Matrimonial Commission Report (2006) is that

custody disputes are too lengthy and too costly. Some posit that parents involved in

family law conflicts might not access justice because of the high cost of legal fees and

inability to secure free legal representation (Babb, 2008; Zimmerman & Tyler, 2010).

Without the funds to subsidize litigation, parents unfamiliar with how to navigate through

the legal system might feel pressured to enter into custody agreements that they are

unhappy with, or worse, that they can not effectuate due to the parental dynamic that led

to the divorce in the first place.

In a follow up to her study, Brentano (2001) found one to three years after initially

filing for custody, a staggering “sixty four percent of the original settlement cases

returned to court for further litigation (p. 70)”, and, “parents who already had been to

court with the other parent and were dissatisfied with their [earlier court] experience were

more likely to return to court and litigate” (p. 70). This lends support to Barclays’ (1996)


suggestion that disputants will repeat litigation without legal counsel when they are

dissatisfied with their initial court experience. What is particularly striking about this

finding, is that those who litigated and those who settled “did not differ in terms of

pre-existing problems in the co-parental relationship, nor were there significant

differences for personality traits of neuroticism, agreeableness and cynical hostility”

(Brentano, 2001, p. 123). This means that parents in the litigation group were no more

contentious or mentally disturbed than parents in the settlement group. The finding that

no significant differences in personality traits and hostility was found between settlers and

litigators; that most settlers who started their first action with an attorney, concluded with

no representation; and that 64% of settlers who were not satisfied with their first court

action and returned to court to re-open child custody litigation, causes one to wonder

about the quality of procedure parents encounter during their initial court appearance

which generally resolves by way of settlement. For example, are parents experiencing a

legal procedure in which they feel they have a voice? Do they feel as if they are a

meaningful part of the proceedings, and have some influence over the settlements they

enter into? Or, are parents entering into agreements because of undue pressure they feel

based upon the other individuals involved in their case, and/or because of the undue

pressure related to time and cost? If people feel unduly pressured into settling their

dispute, then are the stipulations they are signing off on even viable in light of the

parental dynamics that lead to divorce in the first place?


Litigation Costs

Procedural justice data posit that time and cost factors are not relevant to whether

or not people perceive a procedure involving a decision maker as fair (Tyler, 2001; Lind

& Tyler 1988; Lind et al., 1990, Resnik, 1991). Emerging data involving people’s

perceptions of the court, however, suggests otherwise. For example, a Report to the Chief

Judge of the State of New York (2006) determined that “the delay and attendant cost [of

contested matrimonial actions] continues to frustrate the public” (Matrimonial

Commission Report to the Chief Judge of the State of New York, 2006, p. vi). Further,

in 1994, the American Bar Association conducted a legal needs study of low to moderate

income Americans with five main objectives: 1. “To evaluate the nature and number of

situations households face that raise legal issues, 2. to see what steps people take in

dealing with those situations, 3. to ascertain what kids of legal services are provided

regarding the needs brought to the legal system, 4. to assess the public’s awareness of

available legal services, and 5. to gauge the reactions of those who have had contact with

the civil justice system” (ABA Consortium on Legal Services and the Public, 1994, p. 7).

The study included more than 3,000 low to moderate income Americans and relied on

three samples: 1. A sample of all households with telephones with numbers drown from

exchange known to contain households with low-incomes, 2. A sample of non-phone

households in urban areas, and 3. A sample of in-person interviews was also used to

provide some control for the possibility that the legal needs of households without

telephones differed in important ways from those with phones. Data from this study


indicated that approximately 71 % of low income people in America who are facing legal

situations do not access the justice system. The California study (2005) also evaluated

the costs of representation by an attorney. People were asked whether the counsel fee

might keep them from going to court. Sixty nine percent of respondents said that the cost

of counsel fees might prevent them from going to court. Costs also fostered a variety of

negative evaluations of the court system (Tyler & Zimmerman, 2010). Data from the

study conducted in California (2005) found that “those who indicated that they might not

be able to go to court due to attorney costs indicated that the courts performed less well,

that the courts were less satisfactory institutions, that the courts were less procedurally

just; and that they had less confidence in the court system” (Tyler & Zimmerman, p. 14,

citing Rottman, 2005). Data from ABA (1994) and the California (2005) study provide

introductory evidence that people perceive legal fees associated with litigation as

prohibitive to proceeding. This underscore an important issue: Whether the lack of an

attorney might make it difficult for people to go to court (Zimmerman & Tyler, 2010).

There are likely some people who are unable to hire an attorney, but who feel they can to

go to court without one (Zimmerman & Tyler, 2010). Moreover, if counsel fees are

salient to whether or not people will bring an action to court in the first place, then does

the do legal fees also factor into whether people settle or proceed once they have already

retained an attorney and opened a court action? If people are making child custody deals

because they feel they can not afford to continue their court case, does this effect their

perceptions of procedural fairness?


Conclusions

The experience that litigants have when they come to court is important because

it shapes their willingness to comply with judicial decrees, and also forms their

evaluations of the legitimacy of the civil justice system. Access to justice is a social

justice concern and foundational social work principle. A wide body of evidence

highlights that procedural elements are key to an individual’s perception of a fair

procedure (Brentano, 2001; Brannan, 2011; Hollander-Blumhoff, 2011; Tyler, Beckman,

Smith & Huo, 1997; Rottman, 2005; Tyler, 2012, Shestowsky, 2004). This literature

suggests that people care greatly about the fairness of process and procedures used to deal

with problems that bring people to court, and has identified particular criteria that form

peoples’ fairness perceptions (Lind & Tyler, 1988; Tyler, 1994; Tyler & Huo, 2002,

Blader, 2006; Tyler, 2012).

The current study investigates whether these criteria are the same for litigants who

involved in the civil justice system but do not experience formal courtroom litigation.

Emerging data suggest that the quality of procedure people experience during an initial

court action is related to repeat litigation (Brentano, 2001; Barclay, 2006). Some data

suggest that people who felt that their attorney and the court failed to address their main

concerns during an initial court action, opted to appeal their case without an attorney so

they could voice their concerns directly to the court (Barcley, 1996).

As mentioned earlier a wide majority of child custody disputes that come to court

settle prior to the onset of any formal courtroom litigation. As a result, it is important to


explore whether the procedural justice paradigm is relevant for people who enter into

agreements prior to formal courtroom litigation. Do the quality of procedure parent-

litigants encounter in a civil court setting comport with procedural justice? Do time and

cost considerations factor into peoples’ perception of whether they encountered a fair

legal procedure? The current body of procedural justice literature does not capture the

people’s experiences of procedural fairness in a traditional civil court system that

typically moves matters toward settlement. This research shed light on the procedural

values that matter to litigants when they settle contested child custody disputes at the pre

trial stage of litigation.

CHAPTER 4: METHODS 48EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

CHAPTER 4: METHODS

Introduction.

This section explains the methods that were used to assess the fairness of civil

court processes for parents who settle child custody conflicts prior to the onset of formal

courtroom ligation. An explanatory case study design was used to evaluate whether Lind

& Tyler’s (1988) model of procedural justice is relevant for who parents who resolve

child custody disputes at the pre-trial stage of litigation. Interviews were conducted with

parents, matrimonial attorneys, judges and their law secretaries to explore their

perceptions of the fairness of civil court processes, and to examine whether there might

be other factors relevant to a fair procedure, such as time and cost. This study is different

from existing analyses of procedural justice because it shed light on whether Lind &

Tyler’s (1988) group value model that was developed in formal courtroom procedures, is

relevant for litigants who settle their disputes absent a direct, third party decision maker.

The study is also unique because it examines people’s perceptions of justice in response

to the treatment of an array of individuals involved in child custody litigation, and not in

response to treatment by a judge alone. Further, this study is also unique as findings were

based upon a convergence of evidence reported among the different respondent groups,

and not upon the viewpoint of one group alone.


Research Design.

Explanatory case studies are used in order to examine a theory (Yin, 2009). A

single, explanatory case study design was utilized for this research because it evaluated

whether the fair process factors enumerated in the body of procedural justice literature as

prime factors that influence people's fairness perceptions in formal litigation settings, are

also relevant for those who settle in an informal legal setting absent a courtroom hearing.

Case studies use multiple data sources to examine complex social phenomena, and

provide a more in depth account of the study phenomena than research conducted from

the viewpoint of a single group. The common thread of case studies conducted in various

fields is that they converge around the same need to see below the surface of a situation

and provide a way to shed light on research phenomena in-context and from different

angles (Yin, 2009; Stake, 1995; 2005).

There are an array of individuals involved in contested child custody litigation

including the disputants, their attorneys, and a judge and his or her legal secretary. Other

studies evaluating procedural justice have systematically identified fairness factors in

response to a single, third-party decision maker, from the viewpoint of the disputant

alone. For example, Brentano (2001) evaluated parental perceptions of procedural justice

in response to treatment encountered by a judge during child custody courtroom

litigation. The current case study is different than the other studies that came before,

because it explores fairness of civil court processes for parent-litigants from the

perspective of all of the individuals familiar with such processes. In this case study, I


gathered information from three distinct groups of people who are familiar with child

custody litigation from differing vantage points to provide a more in-depth account of the

study phenomena than had data been gathered from the viewpoint o f the parent-litigants

alone.

Study Sample.

1. Parents.

The first study group was comprised parents who had a child custody dispute that

rose to the level of assignment of an attorney for the child or court appointed forensic

custody evaluator, and who settled their child custody conflict prior to the onset of formal

courtroom litigation. A sample of parents was randomly drawn from the fiduciary New

York State Part 36 private paid law guardian appointment list. This list is accessible to

the public. The assignment sheet was comprised of matrimonial cases from one

jurisdiction in one down-state County in New York, comprised of largely Caucasian,

middle class to wealthy parents and a minority of African American, Asian, Latino and

Middle Eastern individuals. The names and contact information of parents were drawn

from the Part 36 list and also obtained through the public phone directory. Participants

were required to: (1) filed (or were filed against) for child custody (2) were assigned a

private pay law guardian (3) entered into a custody agreement prior to the onset of a

formal courtroom hearing; and (4) speak English; and (5) must have a closed divorce

filing.


2. Matrimonial Attorneys.

Matrimonial attorneys were also interviewed as a component of this research

because they are key players in child custody litigation. They observe directly how

parents are treated by the all of the individuals involved in child custody matters, as well

observe parents' response to their experiences in the civil court system. These attorneys

advocate, as well as serve as the surrogate voices for parents during child custody

litigation. They directly observe he way in which parents are treated by the court and

court appointed personnel. They also hear feedback from parents regarding the fairness of

court processes and procedures, as well as feedback regarding parents’ encounters in

court. Furthermore, attorneys generally have greater knowledge and understanding of

court processes, rules and procedures than do parents, unless the parents themselves are

attorneys and knowledgeable of court rules and procedures. They are, thus, in a good

position to share observations about the things parents experience in a civil court setting

to develop their own sense of the fairness of the process.

The attorneys’ perception of the fairness their clients receive is different than that

of the parents. First, their legal rights are not at stake. Second, they may be motivated to

push a case toward settlement even though settlement is pre-mature, or drag out a case

longer than needed. For example, an attorney might be motivated to drag a case on longer

than needed to accrue legal fees. Or, on the other hand, attorneys might be motivated to

push a case toward settling if they have been working on a case and are not being paid for

their work. Matrimonial attorneys were drawn from the Matrimonial Bar Association list


who practice in the same jurisdiction in which the parent-litigants were drawn. This list is

available to the public. Perspective attorneys were: (1) self identified as

matrimonial/family law attorneys; and (2) in practice for at least five years.

3. Judges and Law Secretaries.

The third group of people interviewed were civil court justices and their law

secretaries. The role and function of civil court justices and law secretaries are essentially

the same at the pre-trial stage of contested child custody litigation, so they were grouped

together in the analysis. Prior to the onset of a formal courtroom hearing, both judges and

their law secretaries, conduct informal case conferences with the attorneys and the

attorney for the child. Most judges and law secretaries have little or no direct involvement

with litigants during court appearance dates and deal mainly with the attorneys. Judges

and law secretaries who are assigned matrimonial matters are knowledgeable of rules,

processes and procedures that parents are subject to during child custody litigation. A

sample of judges and law secretaries was obtained through the internet Courtnet database,

which is accessible to the public, and by the court directory which is also accessible to the

public. Perspective court personnel had to have served as a matrimonial judge or law

secretary presiding over matrimonial matters for at least two years in the same

jurisdiction that the attorney and parent sample were drawn.


Definition Of the Variables

Brentano (2001) created a measure based on questions from Kitzman and Emery’s

(1993) and Tyler and Lind’s (1988) procedural justice research, which evaluated parental

perceptions of procedural justice in response to formal child custody courtroom litigation

and treatment by a judge. A semi-structured interview questionnaire was developed to

examine procedural fairness criteria. The items contained in the interview list of

questions are based on Brentano’s (2001) procedural justice measure, and they include

decision control, voice, respect, trust and neutrality. The items were reviewed by two

litigants and by an attorney who was law secretary to a family court judge in New York

County. Feedback from these individuals regarding the clarity of the items was used to

refine the measure prior to application.

Variable 1. Decision Control

Decision control is the amount of direct power and influence that an individual

has over a disputed outcome (Thibaut & Walker, 1978). It has been consistently

demonstrated that people’s willingness to accept an order or mandate from a person in a

position of authority is the belief that fair procedures were used to arrive at the outcome

of a dispute. Disputants are thought to prefer procedures that provide a sense of control

over the process (Thibaut & Walker, 1975; 1978) and a sense of control over the final

decision (Shapiro & Brett, 1993). Factors such as personal control are thought to be more

important when disputes are resolved absent a decision maker (Thibaut & Walker, 1978).

As mentioned earlier in this paper, it is widely assumed that when people enter into child


custody settlements they do so by mutual consent, and that those who settle are not

subject to the whims of decision makers (Thibaut & Walker, 1975; 1978; Lind & Tyler,

1988). This assumption, however, has not been evaluated, which is why the variable

decision control was evaluated prior to voice, respect, trust and neutrality.

Two open-ended items were used to elicit parents perceptions of the amount of

control they had over the sum and substance of their custody settlement outcome. Items

evaluating decision control from the parental viewpoint include: 1. ‘‘Did you feel that

you had control over decisions that were made? Explain.”; and 2. ' i f you did not have

control over the decisions that were made, then who did? ” .

Two-open ended items were used to elicit perceptions of parental decision control

from the perspective of attorneys, judges and law secretaries, including: “When child

custody matters settle in a pre-trial atmosphere who has the most influence over the sum

and substance of the child custody settlement outcome? Explain.”, and, “How significant

is the direct influence of the parent on the sum and substance of their own child custody

agreement achieved in a pre-trial atmosphere? Explain.

Variable 2. Voice.

Voice is the opportunity that an individual has to present all relevant information

to an authority who has influence over the outcome of a dispute (Tyler & Lind, 1992).

Two open-ended items were used elicit parent perceptions regarding the extent to which

they had a voice in their own child custody dispute: “Did you have sufficient opportunity


to present all of the relevant facts and information about your case? If not, explain why.”,

and, “How was the information that you presented used during settlement negotiations, if

at all?”. One open ended item assessed whether the opportunity for voice is relevant to

procedural fairness: “Overall, was the opportunity that you had for voice or the lack

thereof relevant to your experience of a fair court procedure?”

Two items were used to elicit perceptions of opportunity that parents have for

voice from the perspective of attorneys, and judges/law secretaries, including: “Do

parents have sufficient opportunity to present relevant facts and information about their

case during the pre-trial stage of child custody litigation?”, and, "Based on your

observations, do parents generally feel that the information they present is given proper

consideration by the court and court appointed personnel?” One item was used to elicit

perceptions of whether a parents’ opportunity for voice is relevant to their encounter of a

fair procedure, from the perspective of attorneys, judges and law secretaries: “Overall, is

a parents’ opportunity for voice or the lack of voice relevant to their encounter of a fair

procedure?

Variable 3. Respect.

Respect is the sense that an individual is treated with dignity and not demeaned

during the procedure (Tyler & Lind, 1991). Three items were used to elicit parental

responses regarding the extent to which they felt respected during child custody litigation,

“Did you feel that you were treated in a dignified and polite manner by the court,

attorneys and court appointed personnel? If not, how were you treated? By whom?”, and,

METHODS: EVALUATING PROCEDURAL JUSTICE CRITERIA FOR 56PARENTS WHO SETTLE: A CASE STUDY

“Did you feel like you were a valued part of the procedure? If not, how did you feel?”,

and, “Overall, did you feel respected by the court, attorneys and court appointed

personnel? Explain”. One item was used to explore whether from the parental

perspective, respect is relevant to procedural fairness, “Was the sense that you were

respected or disrespected by those involved in your case relevant to your experience of a

fair court procedure?

Two items were used to elicit perceptions of whether or not parents are treated

with respect by the court, attorneys and court appointed personnel, from the perspective

of attorneys, judges and law secretaries, including: “How are parents generally treated by

the court, attorneys, and court appointed personnel during the pre-trial stage of child

custody litigation? Explain.”. “Do parents feel like they are a valued part of the

procedure? Explain.”, and “Based on your observations, do parents generally feel

respected? Explain.

Variable 4. Trust.

Trust is conceptually tied to people’s inferences about the motives and intentions of

the authorities who have an influence over the outcome. The variable trust evaluates

whether a decision making authority demonstrates care or concern about the case, or

whether they do not care (Tyler & Lind, 1991). Two open ended interview items were

used to elicit parental perceptions regarding whether they could trust the court, attorneys,

and court appointed personnel, including: “Did you feel that the court, attorneys and court

appointed personnel demonstrated care or concern about your case? Explain.”; and, “Did

you feel like you could trust those involved in your case (the court, attorneys, court


appointed personnel)? Explain.”

Two interview items was used to assess trust from the view point of the bar and

bench including: “Based on your observations, do parents generally view the court,

attorneys and court appointed personnel as demonstrating care and concern about their

case? Explain.” Do you think that the extent to which parents trust in the court, attorneys

and court appointed personnel affects their overall perception of procedural fairness?”

Variable 5. Bias

Bias is conceptually defined as whether people view a decision maker as neutral

and even handed (Tyler & Lind, 1992). One open-ended item was used to tap parental

perceptions of bias: “Did you experience neutral and non-biased treatment during the

court procedure?” If the answer was that the treatment was biased. I asked, “What kind of

bias did you encounter?” 1 also asked, "Was your experience of bias or neutrality relevant

to whether or not the court procedure was fair?”.

One item assessed bias from the viewpoint of the bar and the bench: “Are parents

generally treated in a neutral and even handed fashion by the court, attorneys and court-

appointed personnel?” Again, if the answer was no, I asked, “What kind of bias have you

observed? I also asked, “Is a parents’ experience of bias or neutral treatment relevant to

their perception of a fair procedure, even among parents who enter into consensual

agreements? Explain.”

Variable 6. Time and cost factors.

Time and cost fall outside of the procedural justice paradigm, however, emerging

literature suggests that the high cost of litigation might impede peoples’ access to justice


(Matrimonial Commission Report to the Chief Justice of the State of New York, 2006;

ABA, 1994; Zimmerman & Tyler, 2010). In order to further explore whether personal

finances affect parent-litigant access to justice, or a fair court procedure, the following

four items were added: "Do personal finances play a role in whether or not a case settles?

Explain”, “Does personal wealth play a role in whether or not parents have access to a

fair procedure? Explain”, “Would more parents proceed to courtroom litigation if they

could subsidize the associated legal and expert fees?”, and “Is there better access to

justice for those who can afford to subsidize child custody litigation costs?”.

Other factors.

Two open ended items were used to explore whether there are any other any other

factors that influence procedural fairness from the parental viewpoint including: “What

did you encounter during the child custody litigation that had the greatest influence on

whether or not the procedure was fair?”, and, “Is there anything else that you encountered

that influenced your experience of whether or not the court procedure was fair?”

Two open ended items were used to explore if there are any other factors that

might influence procedural fairness from the perspective of the attorneys, judges, and law

secretaries, “What factors are most relevant to parental access to justice (a fair

procedure) among cases that settle in a pre-trial setting?”, and “Is there anything else

relevant to procedural fairness or access to a fair procedure for parents who settle in a pre

trial atmosphere?”


Procedure

A data packet was mailed to 45 parents, 45 attorneys and 22 court-employees. In

total 112 individuals were invited to participate in this study. Fewer court employees were

invited because there was a limited number of individuals who met the criteria for

participation. The data packet included: A letter of invitation that explained the

importance of the study, the study goals, and emphasized confidentiality. A postage-paid

enclosure was mailed along with the letter to be returned for those who wished to

participate. The primary investigators email address and phone number were provided in

the letter so that the individuals interested in participating were able to respond by phone

or email. Within a week of the initial mailing seven parents, four attorneys, three judges

mailed back the postage-paid invitation cards indicating interest in participating. One

week after the initial mailing, non-responders in the attorney and court personnel groups

were contacted by phone, and a second mailing was sent out to the parents who did not

reply. After making phone contact, six more matrimonial attorneys and nine additional

court employees agreed to participate. Two weeks after the initial mailing another six

parents sent a response card. All of the parents were contacted and advised that they

would be placed on a study list. Three parents who were recruited for interviews were

dropped from the study because they did not meet the study criteria. In total ten parents,

ten attorneys and twelve judges and law secretaries were recruited for participation in this

study, and a total of 32 interv iews were conducted with respondents from all three

groups.


All individuals who elected to participate in the study were presented with a

consent form before they were interviewed. The consent form (attachment 1) outlined the

purpose of study, provided an overview of study procedures, and discussed

confidentiality. Participants were advised that they could withdraw from the interview at

any point in time, and that they could refrain from responding to any questions that they

did not want to answer. The interviews were semi-structured, and conducted in the

chambers of civil court justices and law secretaries. Parents attended interviews in the

private, home-office the primary investigator. Permission was granted by all respondents

to be audio taped during the interviews. The semi-structured interviews contained a list of

specific items adapted from Brentano’s (2001) questionnaire as well as open ended

questions. Follow up questions were used in order to solicit a detailed response from

respondents.

Analysis

Triangulation, a convergence of data between two or more groups pointing in the

same direction, was used to evaluate the key factors that influence parents’ access to

justice, or a fair legal procedure, among those who settle child custody disputes at the pre

trial stage of litigation. Pattern-matching (Trochim, 1989; Yin, 2009) was used to

compare empirically based patterns found through the data collection to Lind & Tyler’s

(1988) relational model of procedural justice.

Limitations

1. The sample size (N-32) is small. Each group of participants contains only ten to

twelve respondents. The finding from this study, however, was not based upon


information derived from one group, rather the finding was based upon triangulation of

information. As mentioned above, triangulation is convergence of evidence between two

or more groups pointing in the same direction which bolsters internal validity (Yin,

2009).

2. External validity involves whether the study findings can be generalized beyond a

particular case. Case study research does not rely upon statistical generalization, but can

support analytic generalization (Yin, 2009). The findings from this can not be

generalized, and can only be used to support or expand the procedural justice theory.

Results from this study were, therefore, generalized to a broader procedural justice theory

3. The items used in this study were adapted from Brentano’s (2001) procedural

justice scale. There was no focus group used to refine the items prior to application. The

questions, however, were reviewed by a law secretary to a family court Judge in New

York County, as well as reviewed by two parent-litigants, prior to application.

CHAPTER 5: RESULTS 62EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

CHAPTER 5: RESULTS

What factors are most salient for access to justice, or a fair procedure for parents when their child custody matter settles at the pre-trial stage of litigation?

Introduction

This research considers the context in which parents who are in child custody

litigation and make an agreement at the pre-trial stage, have access to a fair legal process.

An explanatory case study design was used to evaluate whether the four dimensions of a

fair process which have been enumerated in the procedural justice literature were

applicable to litigants who enter into child custody settlements before the onset of a

courtroom hearing, absent a direct decision maker. The research also asked respondents

to consider the economic implications of participation in the court system and the extent

to which they felt this affected the fairness of the process, as well as whether there were

any other factors that influenced parents’ access to justice. In this case study, parents

appeared in court with their respective attorneys during appearances. Case conferences,

which are “meant to enhance the management of the dispute and possibly facilitate its

settlement” (Zimmerman & Tyler, 2010, p. 478 citing Federal Civil Rules) were

conducted outside of the presence of the litigants. The case conference, which involves

the judge or law secretary, the attorneys and the attorney for the child, typically lasted

between 20 and 30 minutes. At the end of the conference the attorneys came out and

reviewed the issues that were addressed at the conference. A return date was set for the

parties to re-appear in court with their attorneys at a later date, and the parties continue to


return to court every six weeks or so, until the matter settles. The median time for a child

custody case to settle among parent-respondents was two and a half years. The shortest

time to reach a settlement among parent-respondents was a year and a half, and the

longest time to settle was more than six years. All parent-respondents who participated in

this study reported that the legal and expert fee associated with child custody litigation

were excessive. The fees associated with litigation costs ranged between $40,000 and

more than $400,000 per litigant.

This study used Lind & Tyler’s (1988) model of procedural justice to evaluate the

fairness of the civil court system is processing of child custody matters which settle.

Although this study focused on the quality of procedure parents encountered at the pre

trial stage of litigation, it is important to begin a discussion of the study findings by

acknowledging that courts current function is to encourage settlement:

Courts rarely concern themselves with the extent to which the underlying negotiation affirmatively provided the parties with the opportunity to be heard, to have their perceptions considered by the other side, or to be treated with dignity and respect (Welsh, 2001, p. 830-831).

Variable #1: Decision Control: To what extent do parents involved in child custody litigation at the pre-trial stage, feel they have some control over the children ’s custody outcome?

Decision control is the extent to which the disputants perceive they have some

control over decisions that are made (Thibaut & Walker, 1975; 1978). Procedural justice

theory suggests that when people do not have control over a disputed outcome, the

treatment they encounter by a decision-maker (ie did the decision maker provide

sufficient opportunity for voice, was the decision-maker respectful, was the decision


maker trustworthy, was the decision-maker neutral and even handed) will influence their

perception of whether or not the procedure was fair. A wide body of data reveals that

people feel more fairly treated when they are permitted to participate in the resolution of

their dispute by verbalizing their ideas about what should be done (Thibaut & Walker,

1975; 1978; Tyler & Folger, 1980; Pruitt, et al., 1993; MacCoun & Tyler; 1988; Tyler;

1990; Brentano, 2001; Tyler & Huo, 2002; Wenzel 2002; Hollander-Blumff & Tyler,

2008; Murphy & Tyler, 2008; Blader & Tyler; 2009; Rankin & Tyler; 2009). As

mentioned earlier it is generally assumed that when people enter into child custody

settlements they do so by mutual consent, and because the disputing parties are not

subject to the determination of a decision-maker, procedural justice considerations need

not apply (Thibaut & Walker, 1975; 1978; Lind & Tyler, 1988). The theories

underpinning the significance of procedural justice help to explain why procedural justice

is not expected when matters brought to court resolve through negotiated settlement.

The group value theory (Lind & Tyler, 1988) asserts that procedural justice is

important because people are concerned about how they are viewed by a decision maker.

The process of settlement negotiation that occur at the pre-trial stage of litigation,

however, does not involve a direct decision making authority. In fact, most parents rarely

see the judge or law secretary (if ever). The movement of a case toward settlement is

assumed to involve simply two self-interested parties or negotiators. Thus, litigants who

settle their case prior to a courtroom hearing have effectively withdrawn participation in

the trial process. There is no judicial decision maker involved. There courts are, therefore,


under no obligation to guarantee that the case was settled in a procedurally just fashion.

Because settlement negotiations do not involve a direct decision maker (Hollander-

Blumhoff & Tyler, 2011), it is assumed that the litigants themselves maintain full, direct

control over their own decisions (Thaibaut & Walker, 1978; Lind & Tyler, 1988). They

control whether or not to settle, and on what terms.

Child custody litigation, however, is different from simple settlement negotiations

occurring between two interested parties particularly because it involves not only a judge,

but an array of legal actors that are assigned by court appointment, as well as attorneys

whom the parents likely perceive as legal authorities. While it is clear that parents who

settle child custody conflicts are not subject to a formal judicial verdict, what is less clear

is the extent to which parents feel that they have control over their child custody

outcomes. Yes, parents are volitionally executing an agreement, however, do they

perceive that they had substantial influence over the terms of what has been agreed upon?

Or, do they feel that the others involved in the case controlled the child custody outcome?

The experience of procedural justice is relevant only to the extent that disputants perceive

others as having control over the outcomes (Thibaut & Walker, 1978; Lind & Tyler,

1988), so the variable decision control was evaluated first.

Parents’ influence over child custody settlement outcomes

Data from this study demonstrated that the parent-litigants have little power and

control over child custody outcomes reached at the pre-trial stage of child custody

litigation. Most parent respondents, whether they obtained a favorable or unfavorable


outcome, felt that they had little or no influence over decisions that were made. Most

attorney respondents said that parents influence over settlement outcomes is vastly

diminished over time, from the time the case begins to the point where an attorney for the

child, or forensic custody evaluator is assigned. Most respondents from the judiciary

group said that parents have the least power over decisions that were made because the

judiciary viewed them as more polarized than the other individuals involved in the child

custody cases. Under these circumstances, the group value theory suggests that litigants

will care deeply about the treatment they enure behavior of anyone who has power over

the disputed outcome.

Parental viewpoint: Control over child custody outcomes

Six of ten parents who participated in this study felt that they obtained a favorable

custody settlement. Most of the parents who obtained a favorable settlement outcome

received sole custody, and one parent obtained equal residential custody and joint legal

custody. What is striking, is that a majority of parents who were generally pleased with

their settlement outcome felt that they had little power or influence over the way the

decisions were made. The following representative comments were made by parent-

respondents regarding the extent to which they felt they had control over decisions:

One parent, who obtained sole custody said,

The result is based upon the relationship of the attorneys and the judge.Parents are not a part of it. It’s just non-participatory. I didn’t have much of a role other than I was paying a lawyer who I believe had my best interest at heart.


Another parent who obtained sole custody said,

I felt that I had no say on what was going on. I felt that you went along with what was being said to you. I only had some control over tiny decisions, but the big decisions I felt I had no control over. Ultimately the settlement resulted from the judges feedback.

Another parent who obtained sole custody said,

The only reason I got sole custody was because of the forensic custody evaluator. I just believe they [the attorneys and the judge] went solely by the report.

Four of ten parent-respondents were not happy with their settlement outcome. All

respondents who were unhappy with their settlement outcome said they felt powerless

over decisions that were made. For example, one parent commented,

I felt like we were forced to do this [settle upon joint legal custody]. I didn’t feel like I had the opportunity to proceed to a hearing. It goes back to the pressures that your confronted with, not only from your lawyer, but also the law guardian, and hearing from my lawyer what the judge is yelling about at the same time. If you’ve never been through it at all, it’s a new process. Not really understanding how all of it does work, and your relying on your lawyer to tell you, but that doesn’t necessarily happen. I found that out.

Another parent who was unhappy with the settlement outcome suggested that she was

bullied. She said,

I was bullied. I was forced into it [settling]. Not only was I forced to sign but the judge wanted it done that day, so I didn’t even have 24 hours to think about it. He told me what the outcome would be if I continued. We had to rush and we were under duress to do it. It was pressure that it had to be done today or I would suffer. I was bullied into making that settlement.

And another parent who obtained an unfavorable outcome said,

I felt like I had no power. After the forensics were done the law guardian basically decided what would happen with the children.


Two of ten parents who participated in this study felt that they had substantially

influenced decisions that were made. For example, a mother who obtained sole custody

after several years of protracted child custody litigation attributes the favorable custody

settlement to the fact that she “stood up to the system, pushed back, and did not cave in.”

And, a father who felt that he had a substantial influence over the settlement outcome

said,

Every step of the way they reconfirm that you’re the dad and this is what you get normally. The judge and the lawyers are telling you what normal is and what you can expect. When everybody is telling you that, the judges and the attorney for the child, and the attorneys involved, it’s like, ‘well I’m obviously outnumbered, so I have to try to get more than that.’ Going through the process I had to fight those ideas. So, I think I had a lot of influence because I got twice as much time as everybody was telling me I should get.

In summary, even though a majority of parents who participated in this study

obtained a favorable settlement outcome, most litigant-parents perceived that they had

very little power over the decisions that were made. Two of the ten parents who felt that

they had control over decisions that were made, said that in order to influence the result

they “pushed back” and “fought” against pressures to settle from the other individuals

involved in their case. What is striking about this finding is that the sense of

powerlessness that cuts across a majority of parent-respondents who felt that they

obtained a favorable and unfavorable outcomes alike. This underscores that parents

generally perceive that they do not control child custody outcomes arrived at the pre-trial

stage of litigation regardless of outcome favorability. Parents who were satisfied with

their outcome felt that the way in which the case settled resulted was influenced largely


by the forensic custody report, the attorney for the child, the court or the attorneys.

Parents who were satisfied with the child custody outcome obviously did not feel forced

into such agreements, however, they felt that the outcomes were out of their control.

Parents who were dissatisfied with their child custody outcomes felt that the others

involved in their child custody case controlled the outcomes as well. The difference is

that parents who were not happy with their outcomes said that they felt “bullied”,

“pressured” and “coerced” into signing an agreement that they did not believe was in the

best interest of their child, and that they were unhappy with.

Attorney viewpoint: Control over child custody settlement outcomes

Parents perceptions of loss of control over child custody outcomes were confirmed

by the attorney-respondents and by many in judge/law secretary respondent group.

One attorney said,

As the cases progress their [the parents’] influence on decisions decreases and the court and attorneys have more influence. Once you get a forensic custody evaluator in, a law guardian, and the court, I think the parental input becomes of little significance.

Another attorney said,

If we’re talking resolution in the early stages I think the parties are greatly empowered. Whereas if it is down the road you’ve been dealing with conflict and nobody wants to listen to the other, the parents lose their power.

And, another remarked,

I think that in contested, acrimonious cases, the parents have less influence. I think that they are pushed by other factors more than their own desires. I think they often feel more forced into an agreement.


In sum, most attorneys who were interviewed explained that parents have more

influence over settlement outcomes when a case resolves early on, prior to the judicial

assignment of an attorney for the child, or appointment of a forensic custody evaluator.

They also said that parents retain very little direct power and influence over settlement

outcomes once the case progresses to the point where an attorney for the child, or forensic

custody evaluator is assigned. This supports parents, sense of powerless over outcomes.

Judge/law secretary viewpoint: Control over child custody settlement outcomes

Most individuals from the judge/law secretary group said that parents tend to have

the least power over child custody settlement outcomes because their positions are so far

apart and they need help by the other individuals involved in the case to reach a

resolution. In response to questions designed to gather the judge and law secretary

perspective as to how much parents have control over custody decisions, the following

representative statements were made:

One judge said,

That’s a hard question. I would say that most parents don’t have that much influence [over settlement outcomes] at all because they are so polarized.The other players are so important because usually they [the parents] wouldn’t have reached a settlement without a forensic custody evaluator or a law guardian. One’s on second base and one’s on first base. They can’t meet in the middle. They can’t do it themselves.

Another judge said,

To begin with I think the parents lose control over what they ultimately want to happen. I think the right law guardian, a good law guardian, who is at heart a mediator, a negotiator, can really really be effective in helping people do what they need to do, which is to make these decisions themselves [settle]. Of course a law secretary with a great imagination,


and with gravitas is immensely valuable, but I couldn’t tell you who has more influence over the other. And the judge might say if everything that you have told me were to come out in evidence, and is factually accurate, the likelihood is that the court would decide “X”. Ok, so now each lawyer gets up and goes out into the hall and says to his or her client, you know if we go to trial I think the judge is going to do this. This helps the settlement move forward.

And, a law secretary said,

I would say the attorney for the children because the person sitting neatly between the two warring parties tends to be the law guardian, or the children’s attorney. So the type of resolution that you get is itself dependent upon the type of law guardian that you have.

In sum, most individuals from the judiciary group said that parents involved in

contested child custody disputes have little influence of decisions that are made because

the parents’ positions are so far apart, and the feedback obtained by the court, court

appointed personnel and the attorneys, is used to help bring the two warring parties

together. Thus, a majority of respondents in all three respondent groups said that parents

have little control over child custody outcomes attained at the pre-trial stage of litigation,

and that the court, court appointed personnel and attorneys have substantially more

influence over the way in which cases settle.

As mentioned earlier in section II of this paper, there are several specific fair

process criteria. First, perceptions of a fair procedure are enhanced by a litigants’

opportunity to present their views, facts and evidence to those who influence the outcome

of a dispute. Second, litigants are more likely to perceive a procedure is fair when they

are treated in a dignified and polite manner, and have the sense that the procedure itself

was dignified. Third, the impartiality of a decision maker also influences perceptions of


procedural fairness. And fourth, litigants are more likely to feel that a procedure is fair

when they feel that they can trust in the decision making authority process factors that

will influence peoples’ perceptions of fairness. These categories of relational concerns are

used by litigants to shape their valuations of procedural fairness.

The rules of procedure and current state of law and due process are to provide a

forum in which litigants are sufficiently heard, their presentations sufficiently considered,

and that affords a just procedure for litigants to resolve their legal disputes. Finding from

an evaluation of decision control from the perspective of a majority of respondents in all

three groups who participated in the study demonstrates that parents have little control

over child custody outcomes achieved at the pre-trial stage of litigation. This means that

they perceive the others involved in child custody litigation as those who largely control

the way in which decisions are made. Therefore, people’s encounters of child custody

litigation can be judged against the standard of procedural justice. In essence, because

parents perceive the court, court appointed personnel and their attorneys as legal

authorities they will care deeply about the behavior of the array of legal actors involved in

their child custody dispute. The remaining analysis will, therefore, discuss the extent to

which parents are afforded a fair procedure based upon the dimensions of a fair procedure

enumerated in Lind & Tyler’s (1988) group value model.


Variable # 2: Voice.

Parents’ opportunity fo r ‘Voice’ during the pre-trial stage o f child custody litigation

Voice is sufficient opportunity for an individual to present relevant facts and

information to an authority who has influence over the outcome of a dispute. It also

involves the perception that a decision maker has given thoughtful consideration to the

information presented (Thibaut & Walker, 1975, 1978; Lind & Tyler, 1987; Tyler, 1988;

Tyler, 1994). All parents who participated in this study reported that they experienced

insufficient opportunity to voice their concerns and present relevant information and facts

related to their case to the court and court appointed personal. A majority of individuals

in the attorney group and in the judiciary groups also recognized that parents often feel

like they have little opportunity for voice during the pre-trial phase of child custody

litigation. Most lawyers and judges/legal secretaries, however, believe that litigants are

provided with a sufficient voice through their attorneys. Further, a majority of participants

in all three groups believe that the parent-litigants’ subjective experience of whether or

not they are provided with a sufficient voice has a strong bearing on their belief as to

whether they have experienced a fair procedure. Most individuals in all three groups

agreed that parents perceive that they have insufficient opportunity for voice, and

subsequently, perceive the traditional adversary system as an unfair venue for resolving

child custody conflicts. Also, most respondents in all three groups said that parents are

generally excluded from meaningful participation in court procedures during the pre-trial


stage of child custody litigation, and excluding parents from participation leaves parents

feeling demeaned, extremely frustrated, and distrustful of the civil court system.

Parental viewpoint'. Parent* opportunity for voice during the pre-trial stage o f child custody litigation

During interviews the term ‘voice’ was defined to parent-participants as 1. The

sufficient opportunity to present relevant facts and information involving their case to the

court and court appointed personnel, and 2. The sense that their views were considered. In

response to the question, “Overall, was the opportunity that you had for voice relevant to

your experience of a fair procedure? All parents who participated in this study said that

the opportunity to be heard and present relevant facts and information, or the lack thereof,

influenced their experience of procedural fairness. Parents replied across the board with

comments such as, “Yes”, “Absolutely”, and others reported “Yes. Yes” and “Definitely”.

In response to the questions used during interview to evaluate the extent to which

parents’ felt they had sufficient voice, the following parent-respondents made statements

such as:

Nobody really wanted to hear what I had to say. Nobody really took the time to really hear me or see what was going on. I always felt that things were not discussed at all. I don’t feel like I was heard.

Another parent commented,

We went to court and you would just stand there for two or three minutes.The things that were on paper the judge would just completely disregard.Facts and serious concerns were not being listened to. I just felt like things were totally overlooked.


And, another said,

I was never given any amount of my own voice to speak in front of the judge.

One parent noted that her concerns were not addressed despite coming back for

repeated court appearances. She also felt unsure about what was being discussed because

she was prohibited from participating in a meaningful way. She said,

I never saw the judge. We had been to many court proceedings where it was like, ‘ok come back in another month, come back in another month, come back in another month.’ The issues I wanted addressed at the court date didn’t get discussed. They would go in there for 10 minutes, they don’t let you say much then you leave. It’s hard to know what’s going on half of the time.

Another parent expressed that the lack of participation was extremely frustrating, despite

that he obtained custody at the settlement,

I didn’t have any participation. It was done by other people. I didn’t get a divorce, some lawyers did (laughter). That’s the way I would put it. I didn’t have much of a role other than I was paying an lawyer who I believe had my best interest at heart. They would go inside his chambers so no one else could hear what was going on. I couldn’t hear what was going on. I couldn’t hear how my case was being told to a judge or to the law secretary, because I wasn’t there.

In sum, all parents who participated in this study felt that the lack of opportunity to

present facts and relevant information related to their case substantially impinged upon

their experience of a fair legal procedure. All parents but one felt that the facts and

information pertinent to their case were disregarded. The lack of direct participation lead

to parents’ feeling left out of the process and not knowing what was being discussed

behind closed doors was extremely frustrating because they were unsure if what they


wanted discussed was being represented to the court by their attorneys. Parents felt as if

they were left in the dark about what was discussed between the court and attorneys

during court dates. This resulted in substantial frustration involving the extent to which

parents felt what they wanted represented to the court was even being addressed.

Attorney viewpoint: Parents ’ Opportunity fo r voice at the pre-trial stage o f litigation

All attorneys who were interviewed said that the opportunity for voice, or the

parents’ subjective experience that they had been heard, or not, has a substantial influence

over their encounter of procedural fairness. When asked, “Do you think that the

opportunity for voice is related to their experience of a fair procedure?”, Attorney

responses were as follows: “Yes. Absolutely. Absolutely”, and, “As I said, I think pretty

much if they have gone that far they feel they have not been heard”, and, “Yes, voice is

very relevant to the parents’ experience of a fair procedure”. Another attorney said,

In general, people perceive it as they are not adequately represented. Their side of the story was not told adequately. They then tend to think the process was not fair.

Further, most attomey-respondents said that parents generally feel as if they are

not provided sufficient opportunity to present relevant facts and information during the

legal procedure. A representative comment was:

Parents have little opportunity, if any, to address the court itself because the court is reluctant, if not prohibited, to hear statements offered by the litigants other than sworn testimony. The parents often times express frustration over the fact that there is no one for them to talk to. No one to hear their side. To vent if you will, or explain their position. They feel as though there is a deaf ear all around.



When a parent has a particular concern about what’s going on with the child, or maybe how they are coping with an arrangement and they are told over and over, ‘I don’t need to hear from you’, ‘I will hear from the law guardian’, the parent that’s living with a particular problem feels there is no vehicle, no mechanism for them to be heard.

And another attorney said,

Parents often feel, ‘the law guardian is not listening to me’, ‘He or she doesn’t return my calls’, which really they don’t represent that person.They represent the child. If a forensic psychologist has been appointed maybe the forensic psychologist is not listening. Those are the things I see.

Four of ten attorney respondents said that while parents might feel that they are not

provided with sufficient voice during the procedure that, in fact, they are given a voice

through their attorney. A representative comment was,

Most of the time the parent is provided with an adequate voice through his or her attorney, but oftentimes there are complaints [by parents] that they are not being heard.


I think they [parents] feel that they definitely do not have a voice in the process, however if they have a good attorney they have a voice.

In sum, most attorneys who participated in this study said that parents generally

feel as if they are provided with insufficient opportunity to present relevant facts and

information related to their case during the legal procedure. Some attorneys said that

parents are provided a sufficient voice indirectly through their attorney. Most of the

attorneys interviewed, however, said that even though parents have legal advocates who

provide a voice for them during the legal procedure, parents generally feel as if they are


not being heard. Finally, all attorneys who were interviewed agreed that the extent to

which parents have a chance to share their concerns and present their side of the story to

the court and court appointed personal, influences the extent to which they view the

procedure as fair or not.

Jude/law secretary viewpoint: Parents’ opportunity fo r voice at the pre-trial stage of child custody litigation

The term ‘voice’ was defined during interviews with judges and law secretaries as

sufficient opportunity for parents to present all of the relevant facts and information

involving their case to the court and court appointed personnel. All participants in the

judiciary group except for one said that the parent-litigants opportunity for voice, to tell

his or her side of the story and present relevant facts and information involving the case,

influences parents’ perceptions of whether or not the procedure is fair. Many judges noted

that the lack of voice leads to a distrust of the system or a feeling that things aren’t

decided fairly. In response to the question, “Do you think that overall the opportunity that

parents have for voice is related to their experience of a fair procedure?”, the following

representative statements were made:

One judge said,

I think that most of them feel that they do not get a fair opportunity. I think they feel captive by their attorneys and they rely solely on their attorneys and I think that’s part of what leads to a tremendous amount of mistrust and, um, negativism in the system. If they had more of a voice they would feel that the procedure was more fair.

Another judge said,

A majority of litigants feel that the system is unfair because they don’t get to speak. If they believe that they had input into the procedure and were


involved in the discussion, they will generally come away with the feeling that procedurally they were treated fairly.

And, another said,

I think people who feel that they haven’t been heard feel the procedure is unfair. Not knowing what’s going on. The lack of information. The lack of input. I think this all really makes them feel that they are being treated unfairly. If they feel they know what went on. They know what happened. Somebody had listened to them. Then they when they walk out they might feel, ‘Well I didn’t get what I wanted but it’s ok’. You tend to think that the disgruntled people are just going to be the disgruntled, but not necessarily. If the process were more transparent I think would probably go a long way in making people walk out the door maybe not completely happy, but at least feeling that the system is working.

Most of the judiciary who participated in this study said that parents are afforded

sufficient opportunity to present relevant facts and information related to their case

through an attorney. For example, in response to the items tapping parent-litigants

opportunity for voice from the perspective of judges and law secretaries, the following

representative comments were made:

They are represented by counsel. The counsel steps in and they don’t have as much of a direct voice because things could explode. It’s the nature of the process. I generally find when they insist upon speaking they don’t do themselves any justice. It’s usually an emotional outburst. It’s usually is not appropriate and their points aren’t heard anyway.

So, some judges suggest that litigants are not afforded a direct voice because they

tend to have emotional outbursts, and often behave inappropriately, which is counter

productive to their own case.

Another judge said,

They are not necessarily voicing it directly. They are doing it through their attorney. How much that gets filtered before it gets to either the court or the law guardian is case by case.


This justice acknowledges that the litigants voice through an attorney might be filtered.

This means that the litigants concerns may or may not be adequately represented by the

attorney to the court or court appointed attorney for the child.

And another said,

They should have a sense of knowing that they are going to be able to speak, but through their attorney, who usually are zealous advocates for their position.

This judge affirms that while the litigant does not have a direct voice, the attorney, acts as

a zealous advocate for his or her client, thereby, providing sufficient voice on behalf of

the client throughout the procedure.

A majority of judges and law secretaries said that although attorneys function as

the parents’ voice, typically parents feel they are not heard, and that parents often feel

voiceless even if they are not actually voiceless because they have representation. For

example, one justice remarked,

I don’t think they feel like they have been heard because there’s a buffer.You have an attorney. There’s always somebody in between what they can actually say on the stand. So you never really hear directly from their voice what is upsetting them. It’s always through their attorney. That doesn’t mean the attorney is not a strong advocate for them. I want to clarity that as well. That’s not it. But I think there’s always some feeling that gets lost in the translation.

Another judge commented,

I don’t think they really feel like they have had a voice in this process. I don’t think they really feel like they’ve been heard. Even when it goes into a settlement mode. None of us can comprehend the daily issues that effect parents with respect to their children and custody. We can not comprehend what they are feeling. They discuss it with their attorneys who recreate the events, issues, or concerns regarding visitation or something the parent


wants addressed, or about something that may have happened. The issue gets diluted.

Even though the court is aware that litigants feel frustrated that they do not have

sufficient input and that parents generally feel as if no one hears them, they feel that there

is no avenue to provide participation for litigants given the confines of the court system.

For example, a law secretary remarked,

Well, most courts [referring to the judge and law secretary] do not speak to the litigants. So, I don’t really think they have sufficient input. I don’t think they feel like anybody hears them during the court proceedings the way that the courts operate at the present time. My suspicion is that the litigants really feel very frustrated. But there’s really no process when they’re represented by counsel to have them speak directly to either the law secretary, or the court attorney referee, or the judge. That’s what you have an attorney for. My guess is that they feel extremely frustrated that they are in the process they are not actually verbalizing their opinions.

In sum, most of the judiciary who participated in the study said that parents are

provided with a sufficient voice through their attorney, however, they also said that

parents generally do not feel heard because they are not provided with any opportunity for

a direct voice during the procedure. They also said that a litigant’s sense that they have an

opportunity for voice is strongly connected to their encounter of procedural fairness. They

observe that litigants are not afforded sufficient direct voice to feel they are active

participants in the process, and subsequently they are frustrated with the procedure and

perceive it as unfair. Respondents in all three groups confirmed that parent-litigants

direct participation in the legal process is extremely limited, as attorneys are the central

vehicle used throughout child custody litigation to present facts and information to the

court and others involved in the child custody litigation. Attorneys act as the voice on


behalf of parent-litigants and are responsible for representing the client’s concerns to the

court and court appointed personnel. A majority of respondents in all three groups

suggested that parents generally feel they are not being heard because attorneys are a

buffer that comes between the parents and the court. In essence, parents feel and are

frustrated that they have no real opportunity to tell their side of the story. Attorneys also

acknowledged parent parents feel voiceless. Respondents in the judge/law secretary also

suggested parents do not feel heard.

Variable # 3: Respect: Do parent-litigants feel they are respected by the court, court appointed personnel, and attorneys, and is the way they are treated relevant to whether or not they perceive the procedure is fair?

Parental Viewpoint'. Treatment parents encounter during the pre-trial stage o f child custody litigation

Parents generally felt demeaned.

Parents were asked if they felt respected by the individuals involved in their court

case. Most parents said they felt they were treated with disrespect or felt that they were

treated in a demeaning manner by the other legal actors involved in the child custody

litigation. For example, one parent said, “I had lawyers and the law guardian coming out

and yelling at me in the hallway. Literally yelling.”

Half of the parents who were interviewed said that they felt “bullied” by the court

and/or, other individuals involved in their case at some point in the litigation. For

example, one parent said, “It was just a back room bullying conference which happened

through my whole divorce.” Another parent, who eventually obtained sole custody,

described the treatment that she encountered during the legal procedure “abusive”. She


said, “Oh, they [referring to the court, attorneys and attorney for the child] bullied me

from the beginning”. And, another said, “I was forced [to settle the child custody matter],

I was bullied.” And another remarked, “I can tell you it definitely broke me. They [the

court, attorneys and court appointed personnel] had no respect for who I was”.

In the case of child custody litigation, the “group” is comprised of the litigants

themselves, the court, attorneys and court appointed personnel. The above comments

made by parent-litigants demonstrate that most of them felt they were treated poorly by

the others involved in the court procedure. The sense that parents were treated with

disrespect by the legal professionals involved in their case was reported by parents who

obtained favorable and unfavorable child custody outcomes alike.

Only two parent-respondents said that they experienced generally respectful

treatment. One father said that he felt he was respected by the court and court appointed

personnel, and he also felt like he was an integral part of the procedure. Another father

said that he felt that he was treated with respect treated with respect by the court and court

appointed personnel, however, he felt excluded from meaningful participation. Both of

these fathers said that the positive treatment that they encountered by the judge and others

during the procedure enhanced their experience of procedural fairness, which also lends

support to the group value conception. The sample size was small so it is not

representative, but it is interesting to note that the only people who felt respected were

male. All parents said that the treatment they encountered throughout the court procedure

was related to their experience of procedural fairness. Ultimately a majority of parent

respondents said they experienced “rough” or “rude” treatment This supports Lind &


Tyler’s (1988) group value conception of procedural justice that the treatment parents

encounter will ultimately be a factor in peoples’ justice conceptions regardless of the

outcome.

Attorney viewpoint: Do parents feel respected during the pre-trial stage o f child custody litigation?

Undignified treatment

Most of the attorneys seemed to realize that parents often did not feel comfortable

by the way they were treated during the court process. A representative comment made by

an attorney was,

Parents are often treated in an abrupt manner and it’s a set up to make them feel insignificant. The things they say, you know [to parents], ‘get over yourself. Rough comments. It is not respectful at all. Individuals who have been parenting for eight, nine, ten years, are treated as if the law guardian knows better. All of a sudden they are being told by the court that someone who has met their child for a very short amount of time knows better. This is very demeaning.

Most of attorneys suggested that parents are often condescended to by the others

involved in their case. They said that court appointed personnel often treat parents

generally in an abrupt and disrespectful manner. A representative remark make by and

attorney was,

A judges’ speech at the preliminary conference can be taken as condescending. Whether or not the law guardian gives the parent the time of day is also important. The Law Guardian often has little patience for a parents’ position. They can be a little jaded in terms of how they present.Likely more parents feel they are insignificant to the procedure than those who feel a sense of respect.

Some suggested the whole process was dehumanizing and condescending. A

representative comment from an attorney respondent was,


From the moment that you walk through the magnetometers and through the marble staircase that is well worn, it’s a dehumanizing process. And the perception that they, or their children, or their issues are important doesn’t even cross their mind.

Respondents in the attorney group support parent assertions that they might be

subject to rude and rough treatment by the legal professionals involved in the litigation.

Some attorneys suggested that respect was transmitted more individually. For example,

one attorney said,

I’d like to think that my clients don’t feel disrespected, but there are law guardians and then there are law guardians. There are forensic specialists and then there are forensic specialists. There are opposing attorneys, and then there are opposing attorneys. It depends upon the quality and temperament of the people involved.

Half of the attorneys who participated suggested that the way in which parents are

treated throughout the legal procedure is based upon the temperament of the judge and

other individuals involved in the case. Further, some said that the sense of respect, or

sense of status that a parent perceives is tied into which way the court and/or court

appointed personnel are leaning, either toward one litigants’ position or the other.

Interestingly, this was not supported by the parents. For example, one attorney said,

The parents perception of their own status hinges upon the position taken by the law guardian or the Forensic Custody Evaluator. So, if the law guardian or forensic report supports the mothers’ side, the mother will feel a heightened sense of status. And, if the law guardian or forensic report support the fathers’ side, he will feel a heightened sense of status.


Well, I think that [whether parents feel respected] depends on the situation and demeanor of the people involved case by case. For parents I think it’s what they perceive from a particular judge. A judge that is abrupt is just useless. And actually a judge that is too easy and just doesn’t make a


decision is as bad. There are some [attorneys] who are very condescending, very you know dismissive to the clients. And then there are attorneys that are at the opposite end. They are real hand holders, and explain everything, and let the person cry and have a fit. And they work through all of that. Some people say ‘well I’m not a social worker, I’m a lawyer’. ‘I’m not a therapist, I’m a lawyer’. ‘I’m not going to sit here and hold that persons hand’. But some people need that.

All of the attorneys who participated said that parents are generally treated in such

a way that excludes them from any meaningful participation in the court procedure. The

nature of the legal procedure regardless of how people are treated often leave parents

feeling as if they are insignificant to the process. Attorney respondents suggest this is

because the way the system is designed takes away the participation of the parents.

Parents are told to wait outside in the hall during conferences while the attorneys and

attorney for the child go in and speak with the judge or law secretary. A representative

comment made by an attorney regarding the process was,

Typically the clients show up in court with their attorneys and the law guardian. They wait all morning for the case to be called only for the attorneys to go back into chambers, have a conference, come out and tell them what happened. They come out 15 minutes later, and say, ‘well this is what the judge or law secretary said.’. They [the parents] do not see the judge. They do not see the law secretary. Thy are completely left out of it.They don’t know how a lawyer could be spinning things to the court. They are only hearing somebody’s version of what happened behind closed doors.

While exclusion from participating in the procedure clearly impedes litigants’

direct voice opportunity, feedback from most respondents in all three groups also suggest

that the exclusion is inherently disrespectful. The very structure of the legal process

leaves parents feeling demeaned, irrespective of whether or not a favorable outcome is

obtained.


Most attorneys acknowledged that parents want to be included in court

conferencing with the judge or law secretary, however, some suggested that closed case

conferencing is better because parental participation would be counterproductive. In other

words, these attorneys feel there is a good reason to exclude parents from participating. A

representative comment made by an attorney-respondent was,

I think closed conferences are very helpful for the attorneys because you’re not posturing, your not advocating. You can walk in, and I’ve done it and I’ve seen other attorneys do it, where you walk in and you say to a judge,‘see that wall behind you judge, I understand what you are saying, but when I see my client it’s like talking to the wall.’ You are not going to say that in open court. You are not certainly going to say that in front of your client. So, I think there is more of a frank discussion in a closed conference.


Clients would love to be a part of the action, but it would not be as productive. I also think judges don’t want to be perceived as leaning in one direction or another. So, you may have a judge saying to you at a conference, ‘You know counsel, your clients chances of winning custody are slim and none.’ They certainly can’t say that in an open court or with a client.

Thus, what parents perceive as disrespectful treatment, several attorneys suggest is

actually beneficial to the process and assists in helping to move the case forward more

productively.

Judee/law Secretary viewpoint: Treatment parents encounter during the pre-trial stage of child custody litigation.

Most respondents in the judge/law secretary group also believe that the treatment

parents experience by the individuals involved in their case has a negative influence on


parents’ perceptions of fairness. Often it breaks their faith and trust in the legal system. A

representative comment made by a law secretary was:

I think the treatment parents experience definitely ties into their feeling that they are not significant, and that they are not important, and that they don’t have a lot of input. They may not be kept abreast of what’s going on and that also builds in their sense of distrust. Then when you have all those factors involved and they evaluate the final decision or settlement, or what have you they may feel they didn’t get a fair shake because they are distrustful of the process. If they felt they had more to contribute they might not feel it was unfair. Even if they don’t necessarily get all that they wanted, they wouldn’t label it as unfair.

And a judge said,

Well I think it’s only natural in any situation if you feel like you are being treated poorly than you are going to feel like the process is not good, it’s illegitimate, it’s not valid. I think for anything you are involved in the treatment matters. That only makes sense.

All of the individuals from the judge/law secretary group who participated in this

study except one, said that parents are generally treated in such way that causes them to

feel excluded from the procedure, which also causes them to feel like “the least important

piece” of the legal procedure. This confirms what was said by lawyers and parents. A

representative comment by a judge was,

There’s no question that they [parents] are supplanted [by the court appointed personnel and other authorities involved in the case]. There’s no question. And you often wonder whether or not if indeed what is being represented by the authorities are indeed what the litigants are expressing.But that’s the nature of the beast. It’s hard for them to feel involved. They don’t really feel any status. They don’t really feel like they are a part of it.

And, a law secretary said,


I think if it’s a straight usual litigation where you have a law guardian, you have two attorneys, you have a forensic evaluator, and you have the judge hearing testimony from all those people, they [the parents] are going to feel like the least important piece.

In sum, all of the individuals from the judiciary group who participated in this

study except one, said that parents are generally treated in such a way that causes them to

feel excluded during court appearance dates and this leaves parents feeling like they are

an insignificant component of the procedure and they find this demeaning. Most judges

said that the treatment parents encounter with the court, court appointed personnel and

attorneys, will have an influence on their perception of whether or not the procedure was

fair. They also said that the treatment parents encounter generally leaves them feeling

distrustful of the civil court procedure and breaks their faith in the legal system.

Interestingly, half of the attorneys and some judges felt that the conferences are more

productive when conducted outside the presence of the litigants.

Variable # 4: Trust in the motives and intentions o f the court, court appointed personnel and attorneys.

According to Lind & Tyler (1988) another factor shaping peoples views about

procedural fairness is the extent to which they feel they can trust the motives of the

decision maker who is responsible for resolving their case. Particularly, people are

concerned with whether the decision maker is caring and benevolent, and whether the

decision maker is concerned about their situation (Lind & Tyler, 1988, Tyler, 1989; 1994,

2000; 2004; 2012). “Trust or benevolence involves beliefs about the intentions of the

third party [decision maker]” (Tyler, 1994, p. 854). In essence, does the litigant perceive

that the decision maker cares about the people involved in the case and the issues


effecting the people? Do the disputants perceive that the authority is concerned about

attaining an outcome that supports the interests and welfare of the involved parties? If

people perceive that the authority is caring and benevolent, they can infer that authority is

looking out for their interests in the long run, despite the outcome of the case. This

means that they will trust the authority and respect the decisions made by the authority

because they have demonstrated care and concern for the individuals involved throughout

the procedure.

They judge whether the person is benevolent and caring, is concerned about their situation and their concerns and needs,... [and whether the decision maker] tries to do what is right for them ... these factors combine to form a persons’ trust in a decision making authority (Tyler, 2000, p.122).

Most respondents in the parent group said that they generally did not trust in the

court, court appointed personnel or their own attorneys. Some parents, however, did trust

their attorney. Most respondents in the parent group and the judge/law secretary group,

and half of the respondents in the attorney group said that parents typically view the court

and others involved in the case as “cold” and “uncaring”. Most respondents in the parent

and attorney groups, and some respondents in the judge/law secretary group said that

parents perceive that their case is treated in a cookie cutter fashion by the court and others

involved in the case. Most respondents in the parent and attorney groups, and some

respondents in the judge/law secretary group said that parents feel like a number that to

be cleared off the court calendar. Most respondents in the parent and attorney groups said

that the level of trust parents have in the court and other individuals involved in their case

is relevant to their encounter of whether or not the process is fair. Lastly, most

CHAPTER 5 :RESULTS 91EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

respondents in the parent and attorney groups reported that parents are generally

distrustful of the system and this impinges upon their ability to encounter a fair

procedure.

Parental Viewpoint: Trust in the Motives and Intentions o f the Court, Court-appointed Personnel and Attorneys

Eight of ten parents who were interviewed said that they had little faith and trust

in the court, court appointed personnel because these people were generally indifferent to

the concerns that the parents raised throughout litigation. Three of ten parent respondents

trusted their attorneys, six of the ten parent respondents did not even trust their own

attorney, and one parent respondent did not trust the first few attorneys she retained,

however, she trusted the attorney who eventually helped her to resolve the case. Most

parents felt that the others involved in the case_were more interested in settling the case

for the sake of getting it done with little regard for the facts of the case.

For example, after having spent more than $200,000.00 and several years in child

custody litigation, one mother felt that she would have been “forced’ into a joint legal

custody settlement if not for the fact that her husband was arrested on a fluke for child

neglect and endangerment. She said that there were an array of facts that she had

attempted to have addressed during the litigation, but no one was willing to take a

meaningful look at her concerns. She felt there was a preconceived agenda by the court

and others involved in the litigation to move the matter toward a joint custody resolution.

She said,

No one seems to care. The were, ‘lets just get this settled’. And theoutrageousness of the things that he [her ex husband] had done and said.


And no one cares. If he didn’t get arrested the whole sum of it: the time, the effort, the energy, the money, would have all been for nothing. I would have ended up with the same outcome as if he were a great father.

A father seeking custody of his children also felt that concerns about his wife’s

mental health and stability were not taken seriously by those involved in his child custody

case. He felt that there was a prescribed agenda to provide his wife with residential

custody. He said the concerns that he wanted addressed and examined regarding her

mental health and emotional stability were never addressed. He felt that the case was

moved in a cookie cutter fashion through the legal system without any regard for the real

fact pattern of the case. He said,

I felt like it [my case] was just another thing to get off the desk. Just get it through, get it done. I didn’t feel like I could trust the law guardian because when we went in there he didn’t say what my daughter had told him. I didn’t trust his opinions or recommendations. No one would listen to my concerns about my wife. Things that should have been taken seriously totally were not. No one was listening to anything. Not even my attorney who should know what’s going on. No one cared.

Most other parents, whether they obtained a positive or negative result suggested

the same. Most felt their concerns fell on deaf ears, as no one cared to take the time and

look into the issues that mattered to the parents. This resulted in the perception that the

legal authorities in the case were indifferent and uncaring. They felt like a “number to be

cleared off the court calendar”. A representative remark made by a parent who eventually

obtained sole custody was,

I felt they [the court, court appointed personnel and attorneys] didn’t care.They wanted to get rid of my case. The judge doesn’t see us as people. I was just another case. The law guardian just didn’t do his job. Every time we would appear in court he wouldn’t say a word. He stood there looking at his watch. The judge is not taking into account what is going on in your


life. Between court dates when my lights were turned off and I had no telephone, no food money, no nothing. I want to go to court to get relief, and I’m told, ‘No’, ‘Sorry’, because it [the court appearance date] is postponed the night before. Where do I go in between that time? Where do I go? And I’m just told [by my attorney] to go and borrow money.

This mother is essentially felt that those involved in her case were uncaring. She

felt that the attorney for the children had not done his job, and the judge just wanted to get

rid of the case. Further, she felt that the no one involved in the case cared about how the

litigation was effecting her and the children practically. She had run out of money, was

unable to pay her bills, the lights were turned off, and she had no food. The temporary

relief that she sought from the court was repeatedly postponed. After several years of

child custody litigation she eventually obtained sole custody. Nevertheless, she said that

the court, court appointed personnel and even her own attorney were utterly indifferent to

her concerns. She ultimately said that her experience in court, irrespective of the

outcome, “broke [her] faith in the legal system”.

Another parent said that the court simply does not have the time to care. There are

too many cases on the calendar each morning so it is impossible for them to pay attention

to litigants’ concerns in any meaningful way. He said,

I feel like how can these people make decisions or force you when they don’t know the big picture, or really the history of things that went on.They don’t have the time to go through that stuff. The judge who has twenty-something cases of the calendar for that morning. There is no time allotted to examine the concerns I set forth involving my child. And you feel like a number being pushed through the system at the end of the day.They can’t possibly say it’s about the best interest of the child because they are not willing to hear and facts or anything like that. They don’t take the time to understand the case at all. I would say there is generally a non individualized, pre-molded assumption of how a case should go.


Here you can see that voice opportunity not only has a value expressive worth, but

that when a decision maker takes the time to listen and address a litigants’ concerns, it

conveys a message to the disputant that the decision maker cares and is concerned about

the individual as well. This is tied to feelings of validation by the decision maker. Feeling

like a valued member of the group (Lind & Tyler, 1988; Tyler, 1990; De Cremer & Tyler,

2005). Litigants judge whether a decision maker is benevolent or caring, and is concerned

about their particular situation, their concerns and needs. All of these elements form a

disputants’ trust in the decision making authority (Tyler, 2000, De Cremer & Tyler,

2005).

In sum, most parents did not trust the court, court appointed personnel and their

attorneys. Some parents did trust their attorney. The things that lead to a lack of trust for

parents were largely tied into the sense that the court, court appointed personnel and

attorneys were apathetic to the concerns they as parents were concerned about. Parents

consistently reported that important facts they wanted addressed were often left ignored,

and that those involved in the case were trying to get the matter to settle for the sake of

settling with no real care or concern about the real-life fact pattern. This negatively

affected a majority of parents’ experience of procedural fairness.


Attorney viewpoint: Parental trust in the motives and intentions o f the Court, Court Appointed Personnel and Attorneys

Attorneys were aware of these feelings as well. Eight of ten attorneys who

participated in this study said that parents often complain that there is no one in the

system who cares about their case. A representative comment was,

Most parents feel, ‘they don’t really care about me. I’m just another case.And that definitely with court personnel. Certainly with judges, with law secretaries, um, sometimes with law guardians. Again, depending on the case, and sometimes with their own attorneys. But, but it’s prevalent with court personnel. They are just a number. Lets get rid of the case.

Some of their statements seem to indicate that there is no one who cares. Another

attorney said,

I’m thinking of the litigated case that ultimately comes up with a settlement but for the fact that they didn’t have the money, the judge didn’t have the time to hear the case, no one is hearing, it’s not going anywhere and the kids are lingering, so you have to come up with something. The facts of the case are not considered and rather than treating cases based on the merits of each case often parents are pushed into settling with little or no attention given to the facts. I think many of them feel that the courts want it settled just to clear off the calendar. The majority of those cases the parents throw their hands up and say, ‘This is the best I could have done because the system didn’t address them at all. No one heard me. No one heard the kids. No one cared.

Half of attorney respondents suggested that parents are frequently distrustful of

the motives of those involved in their case. They perceive that attorneys, court appointed

personnel and court appointed experts as caring less about the case, and more about

getting paid. A representative comment made by an attorney was,

There is a very large host of litigants who are walking around thinking, ‘oh these people are just making money and they really could care less what


happens to me.’ I think there’s a good majority, a good portion that think that.

In sum, most attorney respondents said that parents typically have little trust or

faith in the civil court system because parents walk away from the procedure with the

sense that those involved in the case simply want the case to move toward settlement with

little or no regard for the facts of the case. Some suggested that parents are distrustful of

the motives of the court, court appointed personnel and their own attorneys, because

parents are suspicious that the law professionals are motivated by the money making

aspect of litigation.

Judge/law secretary viewpoint: Trust in the motives and intentions o f the court, court personnel and attorneys

Most judges said that the court does care but that they face a dilemma as to how to

convey that to parents “from behind closed doors”. Most judges also supported parent and

attorney-respondent views that parent-litigants generally view the courts are too busy

dealing with too many cases, to really care. A representative remark made by a judge was,

I don’t know how we tell them that we care and we know how terrible that it is. I don’t know how you communicate that from behind a closed door?Even though people really do care, I don’t think the parents feel that they are really being heard. They have a limited opportunity to really express their concerns. I think there’s a perception that the courts are too busy to provide custody litigants with the help that they need.

Most judge/law secretary respondents were also supported parent and attorney-

respondent suggestion that parents are generally distrustful of the system in light of the

structure that excludes them from participating. A representative remark made by a

judge was,


Certainly the way the system works most cases - you could have a dozen or more conferences and the attorneys will meet with the law secretary or the judge, and whatever is done on the record is a minuscule portion of the time that is spent. The client is usually sitting in the courtroom, or sitting in the hallway. There are certainly aspects of conferencing that involves the attorney going back and forth and speaking to the client. But my perception of the clients frustration of not participating in the actual work that’s being done behind the scenes leaves me to believe that there’s a great deal of frustration, distrust and a lack of appreciation of the process because they are just not really participating in it fully.

Most judge/law secretary respondents also acknowledged that litigants often feel

as if they are a “number” among many other cases that are on for the day. They said that

the court is unable to give parents the time they feel that they need, and that this also

leaves parents with the sense that those involved in the litigation are uncaring and

unconcerned. A representative comment made by a judge was,

The system doesn’t have the time or the ability to pay attention and treat you like you are the case of the day. I would guess that people feel that they just a number. One of thirty or twenty case on that day. That nobody really cares about what they are doing. I think there is probably a very negative image out there about the process. I think the litigants probably have a sense that what’s going on is not necessarily just in their interests.They are suspicious of agendas. ... I think as a general rule they are probably suspicious of the process and not feeling it is overly caring to their individual needs.

This respondent and most others in the judge/law secretary group mentioned that

parents are often “suspicious of agendas”. This suggests that parents are unsure of

whether the attorneys are acting in the parents interests or their own. Parents are left

wondering whether their attorney cares more about the parent and their case, or do they

care more about accumulating billable hours. A representative comment made by a law

secretary was,


I also think parents are suspicious that attorneys do not have an incentive to settle the cases because their fees are based on protracted litigation. You know why would you settle a case in the first month when you could squeeze a fee out for another year and a half. And this is what they do.

Most of the respondents in this group said that the nature of the way in which

judges are trained causes litigants to perceive that the court does not care, however, this is

simply the nature of the way in which the system operates. Another law secretary said,

I don’t know if they feel like the judge is particularly compassionate because judges are taught to treat each case the same and to not show any emotion. Not to, you know, let their feelings get involved. What litigants get from judges are that they are very cold, and unfortunately that’s the way they come away feeling.

From the judges perspective, a few respondents in this group said that the court

and court appointed personnel, and attorneys do care about cases and that litigants

generally understand this. This perception, however, was not supported by the parent and

attorney group respondents. For example, one judge said,

I think the overall majority care about what they do. Of course there are different types of people out there. You never can say, uh, 100%. But I would say the law guardians or the attorneys for the children that I have appointed. I’m always concerned that they are concerned. And they are. I would think that they do carry out their court ordered obligation, and that they do want to give the judge information, or the attorneys, or the litigants information that will help them find a path that will best serve the children. I mean I think there is a perception that people care. That the attorney for the children care. That the forensic person cares. I think there’s a perception [among litigants] that the court cares.

Another judge said,

Well, I think the people, um, specifically lets talk about the law guardian and court personnel and other additional personnel. I think those people really want to see an appropriate outcome for the parties involved, and litigants understand that.


In sum, most judges and law secretaries are aware that most parents are distrustful

of the system. Most respondents in the judge/law secretary group said that parents

generally perceive the court and those involved in their case as indifferent, unconcerned

and uncaring. Most suggested that the exclusion of litigants from participation also leads

to a lack of trust. Most also suggested that another factor that causes distrust is that

parents are often suspicious of the motives of those involved in the case. A few

respondents in the judge/law secretary group said that the court and court appointed

personnel, and attorneys generally demonstrate care and concern about the cases they are

involved in, and their care is conveyed to parent-litigants.

Variable #5: Feelings o f Bias in the Court Process

Lind & Tyler (1988) suggest that central to the experience of a fair procedure is

people’s perceptions of whether or not the decision maker has a “neutral agenda” (Tyler,

2000; 2004). In other words, has the decision maker created a “level playing field” in

which litigants can resolve their dispute. Rather than focusing on the outcome of a

conflict, the group value model asserts that people are concerned that they have a neutral

and unbiased decision maker, who is honest and relies on factual information (not

subjective biases) to base decision on and not their subjective viewpoint (Lind & Tyler,

1988; Tyler, 1990; 2000; 2004; 2012).

There was consensus among most respondents in the attorney and judiciary groups

that the court, court personnel and attorneys are generally unbiased. However, half of the

individuals in the attorney group and some individuals in the judiciary group said that the


court, attorneys and court appointed personnel have vast discretion in the feedback they

provide on a case by case basis, which may create unintentional bias. This viewpoint

appears to be supported by half of parent respondents, who said that they encountered

some form of gender bias, in that the parents felt that there was a slant toward pressuring

the case toward a particular custody outcome based more upon the world view of those

involved in the case, i.e. mother’s rights, and father’s rights, rather than based upon the

fact pattern of the case. Most of the respondents in the Parent group said that they

experienced gender bias. Most fathers said that there was a bias toward the mother for

residential custody, and most mother’s who participated in this study obtained residential

custody. The number of parents is small so findings can not be generalized, however,

since most fathers felt bias toward the mother for residential custody and most mothers

who participated in the study obtained residential custody, gender preference toward

mothers for residential custody might still be prevalent even though the law is gender

neutral. This was supported by half of the respondents in the attorney group who said that

there is a bias toward women in the legal system for residential custody.

Some mothers said the case was biased toward the men because the court and

court appointed personnel held a “father’s rights” or “shared parenting” perspective. Most

attorneys said that in recent years said that the legal playing field has been equalized for

men in obtaining joint legal custody (decision making).

Some women reported that they felt they were treated differently by the court and

court appointed personnel because they were the non-monied spouse. In contrast to


mother’s feelings that they (as the non-monied spouse) are treated differently during

litigation, most respondents in the attorney and court personnel groups reported the there

is no preferential treatment endowed on the monied spouse by those involved in the case,

and that both are generally provided with the same treatment.

Most individuals in the Attorney and Judiciary groups clarified that in October

2011 new rules were put in place by the legislature with the aim of correcting the

structural bias in the legal system that had previously tilted the power balance toward the

monied spouse. The new rules strive to equalize the financial playing field for monied

and non-monied_spouses, by requiring the monied spouse to pay the non-monied spouses’

legal fees as well as pay temporary support. Despite the new legislation, about half of the

respondents in the judge/law secretary group said that the monied spouse still has an

advantage in the legal system because he comes into court with the more seasoned, more

expensive attorney. This stands in contrast with the other half of the judge/law secretary

group, and some matrimonial attorneys who said that the financial playing field has been

effectively leveled by the new legislation. While other attorneys and a few judge/law

secretary respondents suggested that there has been a reversal that now places the monied

spouse at a substantial disadvantage in the legal system because the new legislation

provides a counsel fees award to the non monied spouse who can now continue the

litigation until the monied spouse runs out of money and then eventually caves into the

demands of the non or less monied spouse.


In light of the mixed reviews of respondents in the judge/law secretary and

attorney groups, it is unclear at this juncture as to whether and how an individuals’

personal wealth plays a role in providing an advantage or disadvantage to one spouse or

the other. While many respondents in the court personnel and attorney groups noted that

money, or the ability to subsidize child custody litigation does, in fact, provide an

advantage to the parent who can afford to subsidize the costs of litigation longer, it is

unclear as to who exactly is advantaged in light of the new rules. Does the non-monied

spouse who can continue the litigation at the expense of the monied spouse have an

advantage, as some respondents in the attorney and judges/law secretary groups suggest?

Has the financial playing field been equalized, as some other respondents in these groups

suggest? Or, does the monied spouse who comes in with the bigger hired gun still have an

advantage despite the new legislation, as some judges and a few attorneys suggest?

Respondents on both sides of the issue, however, suggest that the spouse who can keep

the litigation going the longest will have an advantage over the other, which suggests that

money might play a role in providing a substantial advantage to one spouse over the

other. So, there may be an inherent bias in the system providing a substantial advantage to

the parent who can continue to subsidize the costs of litigation, if the other can not.

A majority of respondents in all three groups suggested that only individuals who

are wealthy or unrepresented have access to a courtroom hearing. Most respondents in all

three groups said that the legal system allows for cases to remain in protracted litigation

which eventually wears people down. Time cost and psychological pressures eventually


pressure parent-litigants to exit the system, often without their main concerns having been

addressed. Further, most respondents in the attorney and judge/law secretary groups

suggested that parents who settle child custody conflicts based upon undue time/cost and

psychological pressures to exit the system eventually come back to court.

Parental viewpoint: Feelings o f bas in the court process

Gender bias: Parental viewpoint.

Half of the parent respondents said that they encountered some form of gender

bias during the child custody procedure. For example one father, who eventually

obtained a favorable outcome, said,

She’s got ovaries and you don’t and she gets all the days in a month but four. And if you want more you have to fight and scratch your way to getting it.

He also said,

I was told to call the forensic to set an appointment and she’s like, ‘you’re a man you can’t know anything about raising kids’. Why would they take a child whose was with his dad all the time and just hand him over to a mom that wasn’t taking care of him? I can’t see any other reason than the gender bias to just do that without saying anything to either one of us. Like I keep saying as far as the law is concerned I think individual rights for the mom and dad are supposed to be that it starts off on an equal plane. I don’t think that’s the case. You definitely, as the dad, are behind the eight ball.

Another father said,

It seemed like the system is totally biased against men. They felt that men could not be parents even though the kids said so ... The law guardian seemed to have a personal bias towards my wife and a personal hatred of me. Well, basically she just didn’t want to hear anything from me and yet she had an open dialogue with the wife. She said I can’t talk to you because I’m not your attorney. Basically she just shut me down. There was no opportunity to voice my side of the story to her or anything. It just


wasn’t fair. It was just slanted and biased. They made up their minds before anyone opened up their mouth.

Another father said that he had expected the procedure to be gender biased,

however, he found that it was not. He said,

I expected gender bias but there was none. I was pleasantly surprised. I thought the scales of justice would be weighed against me when it came to child custody because I’m a man. But they were not. I didn’t have a problem with gender in the court system.

A few mothers said that the procedure was biased by the court and court personal

because they held a “father’s rights” perspective. For example, one mother said,

I read an article about some movement with our judge gaining father’s more access. To me the procedure felt really biased.

Bias treatment toward the monied spouse- Parental viewpoint

Some mothers who participated in this study said there was a bias toward the

monied spouse. For example, one mother felt that the others involved in her case treated

her spouse with greater respect because he was the monied spouse, and this heavily

impinged upon her experience of a fair procedure. She said,

It was completely biased. I was the non-monied spouse. I didn’t have money. I had no credit cards. I wasn’t working. I was a stay at home mom.So, what was I supposed to do? And, um, they [the court, court appointed personnel and attorneys] looked at him as a better person than me because he had the financial resources that I didn’t have.

Another mother felt like the process was biased toward her husband, who was the

monied spouse, and this impinged upon her experience of a fair procedure. She said,

With the judge, I felt that even when I tried to talk to him, um, because I guess that I wasn’t dressed as nicely as other people were, he automatically just went by the look. Because even when I would say things about what


the ex was doing, he [the judge] yelled at me and said, that I would have to prove it. Meanwhile I handed him paperwork. I had emails. I had proof and he never even looked at i t . ... I do feel that he [her spouse] was treated differently. I think whoever has the most money wins.

What is striking about this mothers’ remark is that after several years of child

custody litigation, she actually obtained sole custody of the children. This underscores

how much the treatment people encounter during court litigation influences their

perception of the court system, despite the outcome.

Bias involving time/cost factors inherent in the legal system Parental viewpoint

All of the parents who participated in the study suggested that time and expense of

protracted litigation impinged upon their experience of a fair procedure. Most parents,

even those who obtained a favorable outcome, suggested that their cases were allowed to

remain in the civil justice system until their finances were drained, which dramatically

impinged upon their perception of the quality of procedure they encountered. In essence,

eventually enough time passes, one or both of the litigants run out of money, and the case

settles. This suggest that there is an inherent advantage in the system permitting access to

a courtroom hearing only those who can pay for the commensurate legal and expert fees,

or those who opt to remain in the system long enough unrepresented. Some representative

parental remarks were as follows:

One parent said,

They [the attorneys and the court] kept the case going until I had nothing left.... As soon as I had nothing left they ended it.


Another parent said,

The whole thing just dragged on. During the negotiation I spent over one hundred thousand dollars. I had no more money, so it [the settlement] was rammed down my throat.

And another said,

What I discovered after going through the process is that the courts basically bleed you of your income until you are forced to settle.

One parent described how her ability to continue to subsidize protracted child

custody litigation provided the opportunity for the case to litigate long enough so that she

did not have to cave in to the demands that were being placed on her by her husband as

well as the others involved in the case. She explained that if she did not have the funds to

keep the case going that she would have been “forced” to settle on terms of custody that

were not viable in light of the parental dynamics, but also that might have placed her

children at risk of harm. She said,

If we didn’t have the assets or resources there would have been no fairness in this. If I came in and said I have twenty thousand dollars to fight this, I never would have had any representation. I mean I have friends who don’t have hundreds of thousands of dollars to spend. I don’t think I would have had anywhere near the same outcome if I didn’t have four hundred thousand dollars to blow through. And it’s not like so much money but it’s basically all we have except for the house. I mean, it’s really been a very painful process. And it’s crippling, but at least my kids had a better shot.There was one thing that I did at the beginning of the divorce that actually made things possible for me not to just cave in and give him everything he wanted. When we were first getting divorced I went to our joint safety deposit box and I took our bonds. I photo copied them and I gave him photo copies, so he has everything and I put them in a separate safety deposit box in my name. That was for eight months when he was giving us two hundred dollars a week to live on. Two hundred dollars a week! I would have had to instantly take my kids out of all their lessons and activities and therapy, OT, PT, and all that. And get food stamps. And, I


mean, if I didn’t have those bonds, which I used to subsidize our living during that time, I would have had to cave and just give him everything he wanted. Just to get it done. So, there were just a couple of good breaks that I had.

All of the parents agreed that undue time and financial pressures moved their case

toward settlement. Many parents suggested that they wanted to proceed, but they did not

largely because of the excessive costs in time and expense. Some representative remarks

made by parent-litigants were:

I think that the stress of the thought of paying all ths money for a trial kind of pushes you into making a decision. If you don’t have enough money to sit in court for about two to three years. Unless you can withstand that your not going to get a hearing. I would have seen it through. It was just the money. It was also the time. It was taking an emotional toll on me. I also just started a new job. I lost a job over this too. There was a direct correlation. I had two judges and I never met either on of them to the tune of sixty five thousand dollars, and them just telling you what to do.

Parents often feel that so much time passes and it they get to a point where they

just can not continue to litigate. Years pass and they feel as if no one is paying attention

to their case or the concerns involving their case. The feel as if they are stalled and going

nowhere fast. The only thing that is happening is that excessive legal fees are piling up.

They feel emotionally and psychologically spent. By the time most parents settle, they

feel as if there is noting left in them to proceed. Half of the parents who participated in

this study said that they would have preferred to have participated in a hearing, but they

could not continue the case due to the associated time, cost and emotional pressures

associated with proceeding.

By that point I had run around so much and nobody was listening. You feel so desperate at the time that you just want to be done. Really. I think it


was the worst time of my life. It really was the worst. And had I had more time or money I would have held out, but I didn’t. I just wanted it over with. I felt like I was beaten down. I had no choice. It was either sign or live the hell that you are living every day for another three years. They never hear the case, they never get the facts. They just wait till it drags and expires. I was out of money and I’m tired o f fighting. It took a toll on me.It aged me. I just needed to go. I mean. I just needed to put it behind me. I just can’t keep doing this. I don’t have the strength. They burned up a whole bunch of my money doing nothing for me. Why not just tell me from day one, ‘Look we are not going to give you a trial’. ‘We are not going to do anything for your children.

Parents said that the time and cost factors impinge upon the quality and fairness of

the process. They feel that the case continues with nothing being accomplished and that

unnecessary funds are spent which ultimately hurts the children. One father said,

You stop you go, you stop you go. It’s like driving in traffic. You know where you want to go and are trying to get there but you just can’t get there. There are all these road blocks. Oh, and it cost between sixty to seventy thousand dollars. It was very financially straining. Money had to be spent that did not need to be spent as far as I could tell. I didn’t get it. I was just like, ‘why does this just keep going, and going, and going?’ Ka ching, ka ching, ka ching. And so that ultimately hurt the kids because that is money I don’t have that I could have used on my kids. That’s not fair ultimately.

In sum, all of the parents who participated in this study said that the system is

structured to prevent people from having a fair hearing unless they can afford to remain in

the system for years of contentious litigation. Most parents said that the time and

excessive cost of child custody litigation eroded their faith in the legal system. At the

time of settlement most parents were financially and emotionally too spent to continue.

Half of the parent respondents would have preferred to have the case proceed to a formal

trial, however, they were unable to continue to litigate because of the costs in time and


money, and because they felt psychologically and emotionally burned out. Half of the

parent respondents said that they encountered bias in their child custody case that toward

the other parent based upon gender, rather than based upon the facts of the case. Most

fathers said that the procedure was biased toward mother for residential custody,

however, one father said that while he expected gender bias toward his wife, that there

was none. A few mothers said that the case was biased toward the father because the

court and/or court personnel held a “father’s rights” perspective regardless of the facts of

the case. A few mothers, who did not have funds, said that they felt the case was biased

toward the monied spouse because they felt the monied spouse was treated with greater

dignity and respect by the court, court appointed personnel and by the attorneys

throughout the procedure.

Attorney Viewpoint: Feelings o f Bias in the Court

Gender bias

Half the attorneys who participated in the study said that gender bias toward the

mother for residential custody is still prevalent in the court system. Some of them

explained, however, that the legal playing field has been pretty much equalized for men in

terms of obtaining joint legal custody. For example, one attorney said,

Well, I think definitely there is a gender bias. Um, typically, I don’t know what the studies show, but I know in my experience that men come in and they will ask for shared custody. And they consider it a moral victory if they get joint legal custody and more than what would be considered the typical visitation schedule. I don’t think in the seventeen years that I’ve been practicing that I’ve ever had a woman come in a say, ‘I would like shared custody.’ And again, I’ve never walked in representing a woman where my client wants custody and I’ve had a judge say or law secretary


say to me, ‘Is that because she doesn’t want to pay support’. And I can’t tell you how many times that’s happened representing men. Where you represent a man and you say my client wants custody and judges look at you and their like, ‘Does he really want custody or is he just using this to back out of support, or because he wants something else.


Although the law is gender neutral I find it generally isn’t gender neutral.There is a bias towards women for residential custody. Legal custody, I would say has changed radically during my tenure of practice. Whereas I used to find it was very much in favor of women. I would have to say it’s pretty much neutral now. There’s a lot of retention of final decision making though. But many times it’s logical because it is retained to avoid the dynamic of fighting in joint decision making.

And another said,

I would say in nine out of ten cases there’s a presumed custodial parent.Most cases I settle with mom getting custody. Dad is down low trying to fight upward to get his rights. Too many lawyers don’t fight as hard for a man as they do for a woman. Which, keep in mind, it is harder to represent the man than it is the woman because the process is generally slanted toward mother custody. So, they may put the same effort in, but you get more results with it when you represent the woman then you represent the man. Although this too has been slowly changing.

No Gender bias - Attorney viewpoint

Some attorneys who participated in the interview said that there is no gender bias

in custody contests. For example, one attorney said,

I think [the legal system] that has changed dramatically. I’ve been practicing for twenty five years. I don’t find the same biases. Certainly in the last five years things have changed. Men and women can both be awarded custody. I do not see the biases. I don’t find that.



I wouldn’t say there is gender bias. I would say it depends on the particular individual. Forgive me, but you could be a knot head and be a female, and be knot head and be a male figure. It’s not a gender issue. Nor does the court treat it that way.

Bias based on personal wold view - Attorney viewpoint

A few attorneys said that biases might exist on a case by case basis based upon the

personal world view of the legal authorities involved in the case. A representative

comment was,

We are dealing with humanity here and different personalities and vastly different world views. These people will lean one way or another based upon how they see it. I don’t think you can have a system that isn’t flawed with situations like that, but it’s the best system we’ve got as they say.Some judges, law guardians and forensics, without naming names, tend to lean more toward the father’s rights, or lean more toward the Mothers’ rights and so on.


You can go before one judge and he will have a clear slant toward the mother for a more traditional mother-custody arrangement. You can go before another judge who is younger, or more progressive, or who has gone thorough his own divorce and had a bad custody outcome, and he might have a leaning toward split residence or split custody.

And a few attorneys suggested that there is too much discretion based upon the

world view of those who influence decisions that are made. For example, another attorney

I don’t think there’s anything neutral and non-biased about the system. I try one judge I get one response. I try another judge I get another response. There’s way too much discretion and personal opinions come into play that push a case toward favoring one side over the other.


Bias/Advantage toward litigant who can subsidize protracted litigation costs Attorney Viewpoint

All of the attorneys acknowledged historically men had a substantial advantage in

the legal system because they were often the monied spouse, and they had the ability to

keep the case going longer until the non-monied spouse caved into their demands. A few

felt that the monied spouse still has an advantage in a civil court setting. A representative

comment was,

The one with more money can play out unreasonable roles for much longer and historically the non-monied person needed to cave in because they became bankrupted.

Another attorney said, “The one with more money can hire the best people and this is a

big advantage”.

All of the attorney respondents reported that recent legislation was set in place in

an effort to correct the financial inequities between the monied and non-monied spouses.

This legislation provides the lesser-monied spouse with the opportunity to petition the

court for legal fees, as well as provides spousal maintenance while the court case is

pending. There were mixed reviews as to the effectiveness of the new rules. Some

attorneys said that the changes in law that are attempting to address financial inequities

between the monied and non-monied spouse and the effectiveness of the new legislation,

“remains to be seen”.

A representative remark made by an attorney was,

The legislature just addressed this with the changes to domestic relations law in terms of temporary maintenance and temporary counsel fee application. When they wrote the legislation some of the commentary talked about the imbalance, and the imbalance is definitely there. There’s


a formula now for temporary maintenance, and the basis for the law is to even the playing field. So, basically the non-monied spouse gets a monthly award automatically that equalizes the financial playing field until such time that the case settles. Also, counsel fee laws were strengthened up a little bit. It was a little bit looser before. There was mainly case law. So that’s a little tighter too. Not to say that the judges are necessarily following. There’s ways for them to get around it. I just made an application for a non-monied spouse. Her counsel fees to a particular judge over here. And that judge said no. He gave zero which was debilitating for my client.... She makes thirty thousand dollars a year. That’s all. When you’ve got a situation where you have the spouse of a very, very controlling, wealthy husband who owns his own business. He basically fixed the books, closed the corporation and is doing work underground, if you will, so that he can portray himself as a non-monied or the lessor- monied spouse. The problem is that all that we’ve got on face for the court with the fees is comparable incomes. She can’t afford the litigation and she is being forced to settle a case where she would do dramatically better if she took it to trial. I mean the bottom line now is that I either represent my client for free, or my client has to go on her own. Not a good situation.

Some attorneys said that the new legislation serve to effectively “level the playing

field” for women financially. A representative remark made by an attorney was,

Since the change in the law it’s there has been more leveling of the playing field. What they’ve done with the interim maintenance and what they have done with the interim counsel fee award in my mind has really scared off the monied spouse.

Another attorney suggested that the new rules protect the non-monied spouse from

being worn down by financial pressures to settle:

In lots of ways there is now more protection so that the monied spouse can’t really use his financial strength to, uh you know, wear down the non- monied spouse at this point.

Some other attorneys said that the new rules enacted by the legislature might place

the non-monied spouse at an advantage because the monied spouse now must subsidize

the bulk of the litigation costs, as well as potentially pay substantial temporary support


until the time the case resolves. These attorneys suggested that the non-monied spouse

now is emboldened to litigate because she can simply, “go back to the well” to get more

counsel fees. In essence, if a counsel and maintenance fee is awarded to the lessor on non-

monied spouse, the monied spouse is bled of his income and eventually caves into the

demands of the non-monied spouse because there is no more money for him to fight. It is

like a role reversal: Historically women were at a financial disadvantage because men

could keep the litigation going longer. Some respondents now said that the new rules

place women or the non monied spouse at an advantage over men because they can_keep

the litigation going incentive to settle. One attorney said the rules make it worse and more

contentious not better. He said,

The new legislation makes the monied one go broke. They have to pay out of the nose for their own lawyer, and for their spouse’s lawyer, and pay and pay and pay until they cave into everything because it is costing them so much. It’s only going to make it worse not better.

Another attorney suggested that while the monied spouse comes in with a better,

more expensive attorney, the non-monied spouse now has an advantage because she can

keep the litigation going longer:

The monied spouse comes in with the bigger gun, however, new rules provide the non-monied spouse with counsel fees and this keeps the litigation going. Whoever can keep things going has an advantage over the other. Understand, the system permits whoever has more funding to litigate longer. Thus, when they enacted the new statute that represents that the monied spouse will pay the non-monied spouse, they made a way for further fueling of the fire and further perpetuating of the fight.


Bias involving time/cost factors inherent in the legal system - Attorney perspective

All of the attorney respondents supported comments from parents that suggest

most parents generally can not afford to subsidize the legal and expert fees long enough

to bring a child custody case to trial. All attorneys who participated in the study, but one,

said that the protracted nature of child custody litigation and extremely high costs often

place a great deal of pressure on parent-litigants to settle. Many attorney respondents

acknowledged that the civil court system is a physical facility that exists, however, most

do not have access to a formal courtroom hearing if they lack the financial resources to

subsidize the high costs of protracted child custody litigation. Some representative

comments made by attorneys were as follows:

They [parents] quickly realize that if they lack the financial resources they don’t have access. They can not afford to have the issue adequately addressed by the court. To say that the system exists as a physical facility for people to access. Sure_.it does. To say there is access to justice. Um, no.Time is usually the main ingredient. When people have been in the system long enough either from sheer exhaustion, or the light finally goes on that they are spending inordinate amounts of money. So, sometimes it’s just the length of the proceeding that wears the people down and they realize the insanity of what they are doing. Litigants who have huge amounts of money will keep this thing going onto infinity because they can afford to play the game. The flip side of that is people perceive if they don’t have the money to do that, nine out of ten times they will have to settle at some point. Even without their concerns being addressed. Because they are out of money and they can no longer play the game you know.

Another attorney also acknowledged that parents settle largely because of time

and cost factors. He also said that when parents settle because of undue time and cost

factors that the agreements often don’t work and they end up returning to court:

Time wears down people. The parties are told oftentimes by the court, if you are unable to resolve this then you are going to need this expert and


this is what the cost is. And then this expert. And so then they get very intimidated if they don’t have the means. Then they realize that they should cut the best deal that they can even though they do not think it’s right. “[They would proceed] if they weren’t scared that it was going to cost $25,000.00, $30,000.00, $40,000.00, $50,000.00. I’m just talking for the custody part of it. I think that they many times they would. But they enter into agreements that they don’t really think will work. And often they don’t work out and they are back in court.

Another attorney equated with the ability to subsidize and attorney with access to

justice. She suggested that there are a multitude of parents who are forced into

unworkable agreements because they can not afford to proceed. She remarked,

If a litigant can not afford an attorney they are at a disadvantage but that’s oftentimes financial. So I think whether or not they can afford that representation is related to if it is a fair. People often agree to joint legal custody when it’s not really a workable situation. It’s just not. They are absolutely forced to, and um, sometimes they don’t have the money to proceed further. I have handled a couple o f cases where the parties didn’t have the money to proceed any further quite frankly. I was just so dead set against them being pressured into an agreement. It was totally unfair so I continued to represent them. I made an arrangement with one woman who ended up paying me like fifty dollars a month for, oh my God, she must have paid that for like fifteen years. But it was just such an unfair situation and she really had no resources at all. She had the hearing and she won.She prevailed. There are so many other parents who are in the same situation, but who end up settling on joint custody where it’s just not suitable because they can’t afford to proceed. It happens all the time.

Summary of Bias in the courts: Attorney perspective:

In sum, most attorneys who participated in this study said that time and cost

factors are directly linked to whether and how most cases settle, which speaks to an

advantage or bias in the system that affords access to justice generally those who are able

to pay for the cost of protracted litigation or potentially for those who are willing to

remain in the system without representation. Most attorneys said that the vast majority of


parents are unable to subsidize the cost o f child custody litigation. Most attorneys said

that as time goes by and parents run out o f money, and the case settles whether or not

their concerns are addressed, which is obviously unfair. Further, some suggested that

when parents settle based upon undue time and cost pressures, they often settle on terms

that are not workable and eventually return to court to correct the agreement.

In addition, all of the attorney respondents acknowledged that there is new

legislation attempting to equalize the financial playing field between the monied and non

monied spouses, however, most said that whichever parent has the means to keep the

litigation going will have a substantial advantage in the system over the other. The

observations by attorney respondents regarding the effectiveness o f the new legislation,

however, were mixed. Some said that the effectiveness “remains to be seen” meaning that

the verdict is still out on whether or not the new rules are assisting the non monied spouse

in any meaningful way. Some said that the legislation is helping to “level the financial

playing field” for the non-monied spouse, and others said that the new rules actually place

the non-monied spouse at a substantial advantage over the monied spouse because the

non-monied spouse can now keep the litigation going longer. Ultimately, all of the

attorney respondents said that the ability to pay for legal and expert fees associated with

protracted child custody litigation provides a substantial advantage. Attorney respondents

were divided, however, who exactly is advantaged in the system at this juncture in light

of the implementation of this new legislation.

Half of the attorneys said that while the child custody laws are gender neutral,

there remains a bias toward women for residential custody. Most attorneys said that, in


recent years, there has been a substantial change putting men and women on an equal

playing field for joint legal custody. Some attorneys said that there is no gender bias in

the court system at this juncture and most said that men are just as likely to be granted

custody as women. Most attorneys also said that there are unique biases inherent in each

case based upon the personal world view of the court and court appointed personnel

involved int the matter. For example, individuals with a more traditional world view

might have a leaning toward a more traditional, mother-custody arrangement, while more

progressive individuals might be slanted toward “father’s rights” or shared custody

arrangements. This means that cases with similar fact patterns can have vastly different

outcomes based upon the subjective leanings, or world view o f the court and other

individuals involved in the case.

Judge/law secretary viewpoint of Feelines o f Bias in the Court

Monied spouse has an advantage- Judge/law secretary viewpoint.

While all of the respondents in the judge/law secretary group acknowledged the

new legislation efforts at leveling the financial playing field for the monied and non

monied spouse, about half suggested that the monied spouse still has an advantage,

because he typically comes in with the more expensive, more experienced attorney. For

example, one judge said, the non monied spouse might not know to petition the court for

maintenance and counsel fees, or that often comes in with a less experienced attorney:

The monied spouse is mandated now to pay the legal fees for the non- monied spouse. The monied spouse, however, comes in with the more expensive, experienced attorney. Oftentimes the monied spouse comes in with better legal representation. I think that helps their case. I don’t know if that’s bias. I think it’s a clear advantage though. The non-monied


spouse might not even know to petition the court for counsel fees. I need a motion for that. The judge is not biased, but we don’t have equal justice for people in civil cases.

Another judge said,

Even though the less monied spouses can get a counsel fee award they often don’t have money to get a good lawyer in the first place. So they borrow you know $2500.00 from a parent or from a relative and they retain a much less seasoned lawyer, so they will not do as well. This should be a big concern to society. The more money you have the better lawyer you can have coming in. Not even necessarily the better lawyer, but also a harder working lawyer. You know. I mean it’s economy of scales.I’ve seen it in every area of the law. When you get a million dollar civil case you are going to get great papers. You have a $2500 civil case you get horrible papers. And it could be from the same lawyer. You know. It’s a business. And you know, that’s another problem. The business aspect of you know, of a custody case is distasteful to me.

And a law secretary said,

Bias is inherently tied to advantage, or the monied litigant. Particularly, whoever has the more seasoned attorney who is more pricey has a substantial advantage over the other. The more money you have, the more advantage you have in the system: better counsel, better attention from counsel. The power imbalance is tilted toward those with money.Ok. And all lawyers are not equal so, therefore, if you have more money you can get a better lawyer and the non-monied spouse has to go to a less influential lawyer. The fact is that the deep pocket spouse usually has a very experienced, well known, matrimonial attorney. And the other spouse can’t afford that attorney. So the more monied spouse has more influence.But I don’t know that is necessarily limited to matrimonial law. That same argument is heard in criminal law. That same argument is heard in commercial mediation.

One judge explained that the non-monied spouse still has to bring a motion for

counsel fees and temporary support. If she does not have the funds to pay an attorney who

has the knowledge and ability to seek a counsel fee award and temporary support, this

places her at a substantial disadvantage:


The non-monied spouse needs a lawyer because she wants to make a motion for certain relief. Well then make a motion. But when she comes in she is representing herself. I can’t give her legal advice. I send her to the self represented clerk. On the other hand, the litigant whose the monied spouse knows how to find the best matrimonial attorney around, and goes out and hires him or her. The other one whose not in the wall street world and doesn’t have access to that. Who is she going to ask? A neighbor.Who do you know? A nickel and dime lawyer to doesn’t know how to handle her divorce. If we see that she should have fees so she can be on an even playing field, we will let her as long as we see she doesn’t have the ability to pay for the lawyer and he does. But an application has to be made. So, she needs to know how to make the application. All I can do is send her to the unrepresented office.

The suggestion that those who can afford more seasoned, more expensive

representation than the non-monied spouse, have substantial advantage supports the

because it suggests that the inherent structure of the legal system provides a substantial

advantage to the individual who can afford better, more experienced representation, over

the other. This unfortunately, underscores that there is better access to justice for those

who can subsidize the costs of counsel fees, or ultimately might boil down to how much

justice can a litigant afford? There is no clear indication, however, as to who is

advantaged at this juncture in light o f the new legislation that seeks to equalize the

financial playing field between the monied and non monied spouses. Even the judges are

divided. Some feel that the rules are there, however, the monied spouse still has an

advantage. Others feel differently.


New rules correct for financial inequities - Judge/law secretary viewpoint

The other half o f respondents in the judge/law secretary group said the new

legislation is helping to equalize the playing field for the monied and non-monied spouse.

For example, one judge said,

The appellate courts have really charged the trial courts with you know leveling the playing field and providing awards o f counsel fees to remedy that kind of imbalance [between the monied and non-monied spouse]. Uh, just in October of 2010 the legislature amended DRL 237 to create a presumption that the court must award counsel fees to the lesser monied spouse. I think the legislature is giving the trial courts the strongest message it can possibly give them by creating a legal presumption that there should be a counsel fee award. The non-monied spouse used to cave into settlements frequently because they were just psychologically, financially and emotionally spent. The new legislation has been one of the biggest changes over the last few years and more and more it’s been codified. The playing field has essentially been evened through counsel fee awards. That in and of itself, uh, from the courts’ perspective the last thing that the monied spouse wants to do is to pay the non monied spouses’ legal fees.

Another judge said,

What usually happens is that the monied spouse can be ordered to pay counsel fees, up front forensic fees, you know, subject to re- apportionment. So, I think the court and the attorneys are very aware of the fact o f how the court operates to level the playing field. There was a recent correction in the last two to four years. Everybody is aware of the great equalizer.

A law secretary said even though the less monied spouse comes in with a less

experienced attorney, that she still may be advantaged becuse o f the counsel fee award.

He said,

Most times the husband is the monied spouse, and the wife is behind the eight ball going into it. So, I think there is bias, however, [the new legislation] kind of tilts the process toward the wife now. The Husband needs to pay a lot more than the he wants to. Remember the non-monied


spouse is awarded attorneys fees to level the playing field pendente lite [temporarily while the case is pending]. In general we try to equal the playing fields. I don’t think the system necessarily tilts in favor of the monied spouse at this point.

Similar the to attorney group, about half o f the respondents in the judge

law/secretary group suggest that the new legislation is helping to level the financial

playing field in court between the monied and non monied spouses. The other half of the

judge/law secretary group, however, said that despite the new legislation they observe

that the monied spouse still has a substantial advantage over the non monied spouse

because they come in with better representation.

Bias inherent in the system related to time/cost factors- Judge/law secretary perspective.

All participants in the judge/law secretary group, except for one, said that time

and cost factors are a major consideration for most parents as to whether they are going

to settle or proceed, which underscores a bias in the system permitting a trial generally to

those who are wealthy. Most of the judiciary indicated that parents enter into settlement

due to the protracted nature of litigation and associated costs, which places psychological

and emotional pressure on parents to settle and impedes their access to justice, and erodes

their faith and confidence in the legal system. Most also said that there is better access to

justice for those individuals who can afford to proceed. A few respondents in this group

said that there is equal access to justice for all individuals in the traditional adversary

system. They said, however, that while there may be equal access, those who can afford

to pay for the costs of ongoing litigation have a substantial advantage over those who can

not afford it, which again, is a bias inherent in the structure o f the system.


The remarks made by respondents in the judge/law secretary group support

comments made by most attorney and litigant respondents, suggesting that litigation costs

are extremely expensive, and that parents often settle when they are emotionally too spent

to continue and when they have run out o f funds so they can not longer subsidize the

litigation costs. Most judges said that only the very wealthy can afford to proceed to a

formal trial, and those who settle due to time and cost pressures often return and repeat

litigation to correct a bad agreement. They also acknowledged that the average wage

earner can not remain in the legal system unless they are unrepresented. Lower income

litigants might get an 18B attorney for the child custody portion of the case, however,

they suggested that 18B attorneys do not provide the same quality o f representation that a

privately retained attorney provides. A representative comment made by a justice was:

The fees that people are charged, and I’m not saying they [attorneys] are not entitled to it, but it’s getting out o f hand. With contested issues around children these cases can remain in the system for a very long time. And oftentimes counsel fees can accrue and become exorbitant over time. Or even expert fees. Every hour they spend on the case is $450.00, $500.00 an hour. It adds up pretty quickly. In the current economic climate I think it’s less likely that people can afford to proceed. People run out o f money and settle their cases. The cases pressured to settle inevitably come back in the form of a post-judgment. They usually come back to court unrepresented.Is it a denial of justice? It’s the reality of the situation. You need to have money to be in the Supreme Court. If you don’t have money you will be representing yourself. You are entitled to a lawyer in the custody portion of your case. I’m not sure who you get for that lawyer. You will get an attorney who is paid at the 18B rate, which is very little in comparison to retaining a lawyer. Retained lawyers get up to six hundred dollars an hour.It’s just a mind boggling number. And you get to the end of a case and the lawyers have earned over a hundred thousand dollars. Which is equally mind boggling. So, if you, you know after you have been in litigation for a year and spent $50,000.00 to $70,000.00, reality starts to set in unless you are really, really wealthy. ‘If I keep this up I’m going to owe my lawyer another $100,000.00.’ So, you know, ‘what are we doing’?


Most judges also acknowledged that the structure of the procedure which involves

repeated return dates over time, and parents may be litigating for more than a year and fell

like “nothing is happening”. They also acknowledged that the protracted nature of

litigation and its associated costs often place pressure on people to settle, which leaves

them with the perception that the procedure is unfair. A representative remark made by a

law secretary was,

A lot o f times they have to come back over and over, so they think the process is delayed. So maybe in their mind they believe the process isn’t fair. The longer the case goes on, obviously the worse it is financially, and emotionally for the parents and the children. People waste months and months and months fighting over non-issues. They waste money, time and emotional energy on it. And then you are a year or more into a case and nothing has happened. So, yeah. I mean, I think time definitely is a factor.In this economy many, many people can’t even afford to live separate and apart, in separate residences. Then, when you add litigation costs they can’t afford it. So, I do think people enter into settlements just to avoid litigation costs.

Most respondents in this group agreed that parents generally enter agreements

under undue pressure due to time/cost factors, typically face undue pressure to resolve

their case due to time and cost. A representative remark involving how time and cost

place considerations place pressure on parent-litigants to settle, and provide an advantage

in the legal system to those who can afford the associated costs of litigation, was:

I absolutely do think that the way the system is set up places undue pressure on cases to settle. Not really the way the system is set up but the way attorneys charge their fees. They have exorbitant hourly fees. We’ve seen cases where a litigant will blow through a $10,000.00 to $15,000.00 retainer and have, like, one pendente lite motion, and the attorney is asking to get off the case. You have to pay the law guardian, you have to pay the forensic. All those fees are so expensive. It bankrupts people. It really does. I think that if people had the means to litigate they would. For example, both parents wish to have sole custody o f the children. Uh, you

CHAPTER 5 :RESULTS 125EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

need at the minimum a law guardian, forensics and those are, well, the law guardian is usually appointed pro forma. But to go into forensics will cost $20,000.00 pre-trial without even any testimony. So, if they can’t pay for that then they are going to settle. Whether or not either party is happy with the settlement or not. That’s what is going to happen. It’s just their psychological thinking at that point [when the case settles]. They [the litigants] have had it. That could be one reason they don’t think it [the court procedure] is fair. If you have the funds you certainly have the ability to have your attorney continue to represent you. I wouldn’t call it better access to justice. Better access to their attorneys. Those people with lots of money are able to take advantage o f all o f the things that cost money [ie legal fees and expert fees] So, uh, oftentimes what has to happen is, and we may joke about it, that a case isn’t going to resolve until their retainer is used up. We say that o f course tongue and cheek. I think sometimes when, lets call it both spouses, have endless resources they will litigate or try to litigate to the bitter end. You’ve got people with literally seven and eight figure or more income and those are the people that you end up seeing [in formal courtroom litigation]. But, if there’s not a lot to divide up it usually gets resolved pretty quickly.

Respondents in the judge/law secretary group were also aware that litigants

generally perceive that the system is failing them because it takes so long for cases to

conclude. They suggest that the time/cost factor wears people down. Some even called

this phenomena “abusive” to parent litigants. Similar to attorney group responses, most in

the judge/law secretary group said that the manner in which child custody matter are

being processed results in repeat litigation. One judge even used the term settlement in

quotes because the settlement is not a true resolution, but a superficial fix to remove the

case from the system without dealing with the issues in a meaningful way. While this is

unrelated to procedural justice concerns, it highlights concerns regarding the quality o f

procedure that funnel child custody matters toward settlement in a pre-trial atmosphere. A

representative remark made by a judge was,


Timing. Really, truly timing. It’s too long. Too much money. Too much time. It’s abusive after a while. I don’t think it’s fair because I think that it costs them a lot of time and money by the time they get a resolution. So, I think there has to be a better way to let them get what need to move on with their lives. It boils down to an abusive situation. By the time they settle they are fried. Those are the ones that you get post-judgment. You don’t want to wait till they are fried so they are settling for the sake of ‘I just can’t do it anymore’.If someone has the money to keep a case going the other side wears down. It’s a legal strategy and the case can fester for years to come. Repeat litigation in these cases is almost guaranteed. And the level of conflict after resolution (I’m using the term ‘resolution’ in quotes) I think would be extremely high. I’ve seen it that way. [Litigants] must feel that this system doesn’t work if it’s taking that long for something so important to resolve.

Extent to which Subjective world view Bias ’ a case: Judge/law secretary viewpoint.

Four of twelve individuals in the judge/law secretary group said that each person

involved in a case brings their own world view to the case, which might tilt the outcome

in the direction of one parent or another unintentionally. For example, one judge said,

In an ideal world it certainly would be a neutral forum. You know the law, the way the legislature enacted it tells us there’s not supposed to be any preference for one parent over the other. But, of course judges have an extraordinary amount of discretion. The attorney for the children and the forensic expert has a tremendous amount of discretion. And human beings are not machines. Sometimes they take a dislike to a person or form opinions prematurely, or, um, it’s not a perfect system.

Another judge said,

I think there are all kinds of biases. I think that there the biases are as individual as individuals are. I think that many people try to be unbiased but they bring in their world view. I think that, you know, uh, unfortunately many authorities come in with pre-conceived ideas and it’s difficult to change that. There’s inherent bias everywhere.


No observed biases- Judge/law secretary viewpoint

Eight of twelve respondents in the judge/law secretary group felt that parents

generally are afforded neutral and unbiased treatment by the court and other individuals

involved in their case. For example, one judge said,

From the courts perspective the procedure is neutral and unbiased. I’ve never seen any judge with any kind o f bias. I mean in not my experience.

Another judge said,

I didn’t like some people’s positions. Didn’t agree with their recommendations. That’s a different story. Were all intelligent, we can disagree. But at least I can’t remember anyone [the court, court appointed personnel/attorneys] that I said to myself, ‘this person has a bias.’ No. Not really.

And a law secretary said,

People generally want to do the right thing but litigants don’t see it that way. Again it depends upon um an individual and how they will perceive it. There are definitely cues that they pick up that would make them think or influence them in thinking that something or someone is against them.Whether or not that bias is really there I would negate that because to be honest with you most of the people, you know, - the attorneys who are dealing with cases, court people, court personnel, forensic evaluators, - I find for the most part ninety nice percent o f the time, the are human, they may snap a little, but ninety nine percent o f the time there is no bias. They want to do the right thing by the family. Even if somebody has had a bad day and is snippy, or yells at a litigant I don’t think that really translates into bias. But, it can very well alter the perception o f the litigant regarding their perception of bias. It’s what they perceive o f the bias or not bias o f any particular judge or anyone else.

In sum, all of the participants in the judge/law secretary group, except for one said

that undue time, cost and emotional pressures often pressure people to settle rather than

proceed to a hearing. Most in this group indicated that parents enter into settlements due


to the protracted nature of litigation and associated time and psychological costs. If one

spouse is able to afford to keep the litigation going and the other is not, however, this

provides a substantial advantage to the spouse who is able to continue the litigation. Most

also said that there is access to a hearing generally for only those who can afford the high

cost of legal and expert fees. Judge/law secretary respondents were divided as to the

effectiveness o f the new legislation that has been implemented to level the playing field

for monied and non monied spouses. Half suggest the monied spouse still has an

advantage because he comes in with a better attorney, however, the other half said the

new rules have successfully leveled the playing field between the monied and non monied

spouses. Most said that there they have not observed any overt bias toward one spouse or

the other in the legal system. Some respondents in this group suggest that there may be

unintentional bias, however, they said that the people involved in the case generally try

and do the right thing.

Other Factors

1. Mediation

Most respondents in the judge/law secretary and about half o f the respondents in

the attorney group said that child custody matters should be diverted to mediation. Most

respondents in the judge/law secretary group and most in the attorney group said that

mediation would provide a process to help parents to resolve their disputes at the early

stage of litigation, it would decrease the time to resolution, and prevent a lot o f

unnecessary motion practice. Most respondents in both groups, however, suggested that


making mandating mediation would be difficult because the matrimonial bar would

perceive it as cutting into their livelihood.

One justice suggested that cases be diverted to mandatory mediation at the

preliminary conference, which is when the parties first appear at the courthouse. He

suggested that a seasoned mediator be provided to assess the case, crystalize points of

dispute and essentially manage the case all the way through to resolution. He said that this

would expedite the matter by averting a tremendous amount of “unnecessary motion

practice”. He further said that attorneys tend to escalate conflicts and keep the case going

until funds are drained, and that mediation might assist in expediting the case so this

would be less likely to occur. This justice commented,

The has to be mandatory mediation. I mean mandatory. Perhaps even simultaneous with the filing of an RJI (request for judicial intervention). In other words, when you file an RJI and request a preliminary conference the first thing you get when you come to court is not a preliminary conference.You get mediation with an experienced person whose not going to be judging the case. It should be with an experienced mediator who can identify the issues and find out exactly what were dealing w ith .... A lot of unnecessary motion practice will be cut out this way. Unfortunately, lawyers too often get the emotions going right off the bat. A few thousand dollars into it and the retainer fee is eaten up. Then they’re off and flying.And of course when they [the litigants] run out o f money there is an application to be relieved [the attorney wants off the case]. And it goes on and on and o n .... Mandatory mediation should be offered right off the bat.The mediator can pretty much manage the case and be made a part of the process.

And a law secretary also said that mandatory mediation of child custody matters

should be conducted by social workers, psychologists or human service professionals,

because attorneys and judges are not trained or equipped to understand family dynamics.


He further suggested that if the matter does not resolve in mediation, that it be referred to

arbitration and that the arbitrator be knowledgeable o f family issues and human behavior.

He further suggested that it would be difficult to do this because attorneys want to make

money off of the case, and resolving the matter through mediation would interfere with

their getting “a piece of that pie”.

He remarked,

There should be mandatory mediation or arbitration by people who are trained in social work, psychology or human behavior. Judges aren’t trained that way. They are trained to decide law. Decide cases. Cold, hard, logic apply. I don’t think custody works that w ay... You have to take it out of the hands of lawyers. That will be the hardest part because they want to have a piece of that pie. Get the lawyers out o f the equation, take the judges out of the equation and make it a family issue. Almost like a counseling session where they can have a chance at working it out. That’s the only way. Otherwise lawyers can stretch it out. And if mandatory mediation does not work. It should be handled by people who understand family issues and child behavior in an arbitration setting.

Another judge said that mediation, particularly of child custody matters, would

provide a more civil route for parents to resolve their disputes. She said that the

traditional adversary system engenders a win or lose mentality that inflames parental

conflicts. She also said that in the traditional adversary system all o f the parties walk

away losers because the process can be so destructive in and of itself, regardless of the

outcome obtained. She said,

There needs to be more mediation. I don’t think a courtroom is where these issues should be resolved for the sake of the kids. Separating out the emotional component, dampening emotions, trying to focus in salient issues is needed. The current system does not do that. Our adversary system is not designed to engender that sort of discussion, - a meeting of the minds. Our system is designed to have winners and losers and child


custody is a poor area in which to encourage that kind of win or lose mentality. Even the one who walks away thinking that they won is a loser if there are children are involved.

Attorney-group viewpoint regarding mediation.

Interestingly, about half o f attorney respondents also suggested that early

mediation of child custody issues would help improve the process for parent-litigants.

Most of these attorneys, however, suggested that this would be a hard sell to the

matrimonial bar because most attorneys would perceive mandatory court based mediation

as cutting into their livelihood.

One attorney used Florida as an example o f how mandatory mediation can

improve the process for litigants. He suggested that he was amazed at how quickly

litigants finished not only child custody, but the entire matrimonial action through court

mandated mediation. He also indicated that mediation would enhance litigants’

experience of a fair process. He commented,

Florida has mandatory mediation. So they cut through all o f the bunk and only the serious cases make it to the court house. I paid for my girlfriends divorce in Florida and was shocked that they did it that way. Her case was mediated from start to finish and done in eight months. Custody, visitation, shared parenting time, holidays, vacation, college, mortgage, house, pension, retirement, support, everything! I was flabbergasted. I was shocked that it ran as well as it did. So maybe, - and I know it’s something that might not happen because the lawyers probably perceive it as, ‘your cutting into my livelihood’, - but there should be mandatory , preliminary mediation.... This way litigants will feel that they are being treated fairly and you are narrowing the true litigation issues.

Another attorney suggested that dealing with child custody issues can not be

viewed as a business transaction because the issues are more complex and are rooted in


“the core emotions of people’s lives”. She suggested that matrimonial litigation be

handled through a court based mediation program, because providing mediation for

parents disputing child custody would resolve a substantial amount o f cases quickly, and

also provide parents with a venue where parents feel heard, feel that their concerns are

adequately address, and in which parents develop a plan for resolving their conflicts.

You have to be part social worker, part therapist and part lawyer because you are dealing with the very core emotions of people’s lives. You can’t look at it [resolving child custody conflicts] as a business deal. You just can’t. So I think maybe the structure of the matrimonial parts should be handled through a mediation program. That way cases would go quicker.The parents, - not all of them, - but a substantial number would benefit.This would be very effective in helping parents make a decision and listening to them. So, now they are not only being heard, but their concerns are being addressed and they have participated in developing a plan to resolve their parenting disputes.

In sum, there was consensus between most respondents in the judge/law secretary

and about half o f the respondents in the attorney group, suggesting that the process would

be improved by diverting parents to mediation. There was consensus that mediation

would assist in diffusing parental conflicts, timely resolution of the matter, and provide a

forum for parents to have direct participation in the process. Further, parents would be

developing their own agreements in mediation. Some respondents in both groups also

suggested that “you have to be part social work/part psychologist” to treat child custody

matters successfully and that you have to take the case out o f the adversary system. They

suggested that the system which considers law is not a constructive venue for parents to

work out their custody conflicts. They suggested that families would be better served if

the child custody case was diverted out o f a traditional litigation setting, which


encourages a win or lose mentality and which inflames conflicts, and diverted to diverted

to mediation.

2. Separate child-custody from the rest o f the divorce proceedings

There was consensus between most respondents in the judge/law secretary group

and half of the attorneys, suggesting that providing an early bifurcated hearing o f child

custody (separating out the child custody issue from the rest o f the legal issues involved

in the matrimonial action), would also improve the process for parents. Most respondents

in the judge/law secretary group and most attorneys also suggested that there are many

factors that come into play involving child custody contests, and the main consideration

they observe is often financial. For example, one parent might offer to withdraw a

custody petition if the other parent agrees to a waiver or reduction of child support, or to

waive or reduce a claim spousal maintenance. Most respondents in the judge/law

secretary group suggested that bifurcating the child custody component would not only

expedite a resolution to the case, but would also help protect the children often used as

leverage to bargain for other components o f the case. Further most judges and almost half

of attorney respondents suggested that if the case is bifurcated and heard, once the child

custody is resolved, the other facets of the case tend to resolve pretty quickly. One law

secretary suggested that children or often used as “pawns” in exchange for other items in

the divorce. This attorney suggested that an early hearing on the issue of custody would

protect the children from being used as to leverage for other components o f the case.


She said,

Children are used as pawns for other items in the divorce to lower support, for more equitable distribution, etc. There’s very few cases that I have seen that I would consider a true child custody case. Usually it’s an issue of the parties trying to intertwine monetary issues with chid-centered issues. An early hearing on the issue would prevent this.

Judge/law secretary remark regarding bifurcation

A representative remark made by a judge also suggests that there is a very large

financial element to child custody issues that make their way to court. She suggested that

if every avenue to resolve the issue o f custody fails, the case should be bifurcated and

heard early on. This would not only protect the children from being used as leverage for

other components of the matrimonial case, but it would also help to expedite a global

resolution of the entire case. This is because the issues o f support and equitable

distribution (division of marital property) often hinges upon the child custody

arrangement. She commented,

I f you have a stay at home mom and the husband is the primary wage earner, - I have seen a lot o f times where they will try to bargain visitation in relation to how much child support she will be getting. For example, “I want 50:50 custody”, so they can get out o f paying child support. So, child custody is used sort of as a bargaining chip for the other components of the case.... If the parties are ultimately unable to come to a resolution, and you have exhausted every option that you have to settle the matter, then bifurcate it and take it to trial or a hearing, because you know the custody issues are very often what gets in the way of the case settling the financial issues. It would also get the emotional aspect out o f the way. Once the custody is done it [getting the rest o f the case settled] is just a matter of dollars and cents.

CHAPTER 5: RESULTS 13 5EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

Attorney viewpoint of bifurcation

About half of the attorney respondents also mentioned that an expedited,

bifurcated hearing might help to improve the process for parents and protect the children.

The attorneys also acknowledged that once child custody is resolved oftentimes the rest

of the issues in the matrimonial action fall into place. For example, one attorney

suggested that if mediation does not work out the case should be heard in order to

expedite a global resolution, as well as to prevent destructive family dynamics for playing

out for potentially years because parents are often forced to reside together until the issue

of custody is resolved. He said that this is often a “powder keg” and extremely destructive

for many parents and children. He said,

Bifurcating custody, if it can’t be successfully mediated, might be helpful because a lot o f times when that piece of the case is taken care of, the rest of the case falls into place. There are often situations where parents are forced to live together during the divorce action and it just deteriorates. It is a powder keg. I have a situation where custody is being contested and the temporary order is that the parents rotate in and out of the house a week at a time and the kids stay put. That might work where there are no control issues. But when you have situations where the mother moves out for a week and the father is staying with the kids and going through moms’ belongings and opening her mail, or vice versa. I have a situation like that now where the father leaves very suggestive notes and pictures on the mother’s bed when he leaves. All this craziness is going on. The woman is terrorized and the judge is like, ‘Well it’s good for the kids’. But your not really helping anything because the kids are a mess with all o f the conflict and chaos swirling around them. It remains that way for years. This is an example of a case where they should have made a decision on custody right away. Either do an expedited forensic if there is such a thing, or just have a hearing on the issue and stop the madness.


A representative comment from an attorney regarding how bifurcating the custody

piece will help resolve the case for the betterment of the children was,

Money is a big player in this game. Lots o f times the reason someone wants joint or equal residential custody is that they are trying to eliminate the support obligation. And I have seen some litigants take less child support in order to retain residential custody. I know it’s disgusting but that’s what happens. That’s what people do. So, it definitely needs to get resolved more quickly for the betterment of the children. When cases can’t resolve a bifurcated hearing would do this.

Another attorney suggested that judges just typically do not make decisions on

child custody and that providing hearings would help to improve the procedure when

cases don’t settle. She suggested that the way the system is structured which requires

repeated court appearances with little movement toward resolution is highly frustrating

for parents and that this is grossly inefficient and burdens court calendars. This attorney

said that a bifurcated hearing when mediation does not resolve the matter would actually

help lessen the burden on court calendars, but suggested that this would require more

work on behalf o f judges who generally don’t like to conduct custody hearings. She also

suggested that litigants would be much more satisfied if their case was referred for a

hearing, in the event that mediation failed. She remarked,

Judges really don’t make decisions on child custody cases anymore. With respect to fixing or addressing the system, I think part of it could be that the judges hear the child custody case early on if it does not settle. Perhaps they could hear their conferences in the morning and have at least two hearings a day, if not a trial, to hear, decide, and resolve child custody issues. It could be fully vetted. Both parties could make their arguments and it will actually lessen the burden on the court calendar rather then increasing it, but it would require a full day of work. If they could reduce the amount of appearances required and actually increase resolution of unsettled matters, which can only be done by a hearing, that would clear their calendar. So, I think the way the system is set up where you are


making repeated appearances, conferencing and accomplishing nothing is not serving parents well. If the issue is not resolved in mediation after three months we should have a hearing on the issue o f custody. Even if it is temporary. You know it would go a long way because as it is litigants see that nothing is happening. This way parents would feel more satisfied because they would feel like they are a part o f the process. They would be much more satisfied.

In sum, most judges a some attorneys agreed that when cases do not resolve

through mediation that they should be referred to an expedited, bifurcated hearing on the

issue of child custody. Most respondents in the judge/law secretary group a many

attorneys acknowledged that children would be better protected by providing a bifurcated,

early hearing because the issue of child custody is often used as leverage to bargain for

other components o f the case and an early hearing on the issue of custody would prevent

this from occurring. Further, an early hearing would assist a substantial amount of cases

to achieve a global resolution and exit the system altogether because issues of support and

equitable distribution often hinge upon the child custody arrangement. Bifurcating child

custody might also relieve overburdened court calendars, by resolving the dispute early

on, so that more cases will resolve early and exit the system. Lastly, it would provide

access to a fair hearing to those cases that are unable to resolve early on. This is

significant because data from this study suggest that parents would often like to have their

case heard by a judge when it can’t settle, however, most are unable to subsidize litigation

costs long enough to remain in the system for the case to heard, or can not afford the legal

and expert fees associated with a trial.

CHAPTER 5: RESULTS 13 8EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

3. Perceived Outcomes of lack ofprocedural justice - Undue time/costconsiderations and repeat litigation: Judge/law secretary and attorney perspectives

As mentioned earlier, time and cost and psychological pressure to exit the court

system were identified by most respondents in all three groups as playing a significant

role in influencing the timing of when parent-litigants settle. Most respondents in the

judge/law secretary group and half o f the attorney group respondents said that parents

who settle because of undue pressure to exit the court system are the same individuals

who often return to court post-judgment. A representative remark made by one justice

was,

They just cave in. ‘Tell me where to sign’. ‘I’m tired’. ‘I can’t do this anymore’. It happens all the time. The access [to the court system] is always there it’s jut their psychological thinking at that point [at the point o f settlement]. They have had it. So whatever the rationale or reason, people may sign, and then of course you get the post-judgment.

Another judge said,

The way the system is set up places undue pressure on cases to settle....People are signing when they are psychologically spent and financially broke. By the time they settle they are fried. And then they come back.Those are the ones you get post judgment, because they are just fried to the point where they are just settling for the sake o f , ‘I can’t do this anymore’.

A representative attorney remark regarding the way in which litigants frequently

exit the system because of undue pressure to end the litigation, and later return to court,

was:

Parents are often entering agreements just to get it done and this results in a lot o f post judgments.


Most attorneys suggested that time and cost considerations place a great deal of

pressure on parents to exit the system. Most also said that many parents would prefer to

proceed if they could afford to do so, however, they enter into agreements that often don’t

work because they can not continue to subsidize the costs of a hearing, and this results in

people coming back to court. She said,

Parents usually can’t afford a custody trial. They would proceed if they weren’t scared it was going to cost twenty five, thirty, forty, fifty thousand dollars, or more. I’m just talking the custody part o f it. They would proceed if they could, but they enter into agreements that they don’t really think will work to end it. And some of them don’t work, and then they come back to court.

Undue Time/Cost considerations and post-judgment litigation: Parental data.

Though no statistical generalization can be made, it should be noted that most of

the parent-respondents who felt undue time, cost and psychological pressure to exit the

legal system, re-opened litigation within a year of settling. This lends some support to the

suggestion by individuals in the judge/law secretary and attorney respondent groups that

parents who settle child custody disputes because they can no longer withstand the

associated time, cost and psychological pressures, might eventually return to court.

In sum, as noted earlier, most respondents in all three groups suggested that

parents involved in child custody litigation often exit the legal system after having been in

protracted litigation, and after having accrued excessive legal and expert fees. Thus, time

and cost considerations, which fall outside of the procedural justice paradigm, appear to

place a great deal of pressure on parents to settle on terms that they might not like or that

might not be viable, in order to exit the legal system. This obviously impinges upon


people’s encounter of procedural fairness. Many parent-respondents said that they exited

the system because they could no longer withstand the time, cost and psychological

pressures commensurate with the legal procedure. Even parent-respondents who obtained

a favorable result complained of the excessive costs in terms o f both time and finances

which impinged on their perceptions of procedural fairness. Further, most respondents in

the judge/law secretary group and many in the attorney group suggested that when parents

exit the system in light of undue time and cost pressures, they eventually repeat litigation.

The suggestion that undue pressure to exit the legal system in light o f time and cost

considerations results in repeat litigation was supported data derived from the parent

respondent group as well.

4. General perceptions of the justice system

Parental perceptions of the justice system.

All respondents in the parent group provided an unfavorable review of civil court

processes. Interestingly, parents who obtained favorable and unfavorable outcomes alike,

held similar perspectives about the procedure. Representative remarks about the

procedure made by parent-respondents (some of whom obtained sole custody) included:

“The procedure was horrible. It was horrific in and o f itself.” Another parent said, “The

procedure was like the biggest nightmare.” A parent who eventually obtained sole

custody said, “It was absolutely the worst experience o f my life other than death in the

family.” And another parents said, “I was really frustrated with the whole process.


Emotionally it was ravaging.” Other parents described the process as, “a joke”, “a circus”,

and “insanity”.

Further, most respondents in the parent group said their experience with the court

procedure was no bad that it broke their faith and trust in the legal system. Some

representative parental remarks were: “The whole thing [the court procedure] was pretty

mickey m ouse,... and my faith in the system was shattered”. Another parent, who

obtained sole custody, said, “It’s not like I didn’t get what I wanted, so I hate the court

system. At one point I believed in the justice system. But now after what my children and

I have been through, I see the system is completely fractured”. And another parent said

the justice system is “utterly broken”. It must be underscored that parent-respondents who

obtained favorable and unfavorable child custody outcomes alike described the justice

system as “broken”, “fractured”, or “failing”.

Judge/law secretary view o f the justice system

Most respondents in the judge/law secretary group seemed to understand parents’

frustration with the procedure. For example a law secretary commented, “There are many

people who come to court and feel that they are not getting a fair shake by the judicial

system. They are frustrated with the system and I don’t blame them.”Another

representative remark made by a judge about the legal procedure was, “I think the process

is painful, confusing and alienating to them [the parents]. It’s just not a good procedure”.

And, another justice remarked bluntly, “The system sucks and you can tell them I told

you so”. And another justice said,


Families who are unable to resolve parenting issues and custody without becoming embroiled in court proceedings really are part o f a tragic situation. There’s no way to justify the financial and emotional toll that families are forced to undergo by the present courts system.

Attorney-respondents ’ view of the Procedure.

Most attorney respondents also suggested that litigants often view the process as

unfair, and acknowledged that the process is not run well. For example, one attorney said,

A majority of litigants feel the system is unfair because they don’t get to speak. They come here twenty times and know nothing about what happened in chambers. Then the lawyers come out and say we have to come back again in four weeks. It’s not a good way to run things in my opinion.

Some also suggested that the legal system in it’s current form is failing and said

that litigants often feel the entire procedure is “waste o f time”. For example one attorney

If I have to be completely honest I think most people who deal with the system are not happy with it. I don’t think they feel it’s all that fair. I don’t. They are in the system for a year, a year and a half, two years or mor, and when they settle they don’t have a glowing sens of, ‘Wow, this was a great way to do this.’ And I really have to agree with them. I think this is because they have found the system to be very much a waste o f time.


I have not met one person that has gone through litigated custody, and this is people we have been successful and unsuccessful, that have walked away from the process and have thought, “This was hard work, it was difficult, but in the end it was worth while because the system ended up working’. I think on the whole anyone who has gone through the system has said it has failed miserably. When they walk away, generally speaking, they feel like they have wasted a lot o f time and nobody has listened to them.


Summary of the findings

Findings from this study support the notion that litigants care deeply about the

kind of treatment they experience by the court and other legal actors involved in the legal

procedure. Findings further suggest that parents are generally unhappy with the quality of

civil court processes because their experiences fall short o f affording them with sufficient

voice opportunity, respectful treatment, engendering trust in authorities, and also because

at times they perceive the procedure as biased, which have all been widely documented as

key to people’s experiences of a fair procedure (Lind & Tyler, 1988; Tyler 1990, 1994;

2000). Parents who participated in this study reported similar poor treatment and negative

views of the civil justice system regardless o f the outcome they attained. The way in

which parents were treated by the court, attorneys and court appointed personnel was,

therefore, critical to how they viewed procedural fairness. Interestingly, despite the

divergent views between parents and law professionals involving the extent to which

parents should be permitted to participate, most respondents in all three groups

acknowledged that parents are exceedingly frustrated with the process, and this frustration

generally results in parents feeling that the process is unfair and fractures parents’ faith in

the system. While the findings from this study can not be generalized, data supports the

broader procedural justice theory which posits that the way people are treated by a

decision maker influences their perceptions o f fairness, despite having obtained a

favorable outcome, and that the key components o f procedural justice are relevant for

relevant even for those who settle their disputes prior to a formal courtroom trial absent a


direct decision making authority. Data further suggests that time and cost considerations,

which fall outside of the procedural justice paradigm, are also extremely relevant to

parents’ fair process perceptions.

Concluding Comments.

The volume of civil divorce cases involving children that the New York State

courts handle creates pressure to move cases through the system in assembly line fashion,

- a method of processing cases that clearly does not provide litigants with the opportunity

to feel as if they were involved, listened to or treated with respect. Litigants are generally

excluded from participating in settlement conferences. Lawyers typically go into the

judges chambers and discuss the case with the judge or with the judges’ law secretary,

and then come out and discuss the movement of the case (in one direction or the other)

with little input and participation by their client. Data from this study suggest that parent-

litigants feel isolated from the process which leaves them in the dark about what is going

on with the case, and this dramatically impinges on their experience of a fair procedure.

Judges and matrimonial attorneys also acknowledge that isolating parents from the

procedure is a major source of discontent for parent-litigants, and that the lack of

participation fosters negative views of the procedure and of the legal system. Parents

often complained that they have no idea as to what is going on in court or what is being

discussed in the “back room”, and often felt their main concerns were left unaddressed.

Attorneys supported parents’ complaints that their mains concerns, as well as facts and

information pertinent to the case are often not sufficiently addressed. Most attorneys also


affirmed parent-litigants’ discontent with lack of participation and lack of direct access to

the judge. Most judges and some attorneys, however, said that conferences are more

productive without parental participation. Respondents in all three groups unanimously

agreed that the process takes too long and costs too much.

The dissonance between law professionals who are trained to focus on the

relevant legal issues, and to attain a correct outcome, with litigants’ need to feel heard and

respected, are apparent. Parent-litigants want to experience a fair process that conveys

that the authorities hear and consider the issues that are important to them. Data from this

study suggest that parents are extremely frustrated that they have little meaningful

opportunity to speak with the judge during court appearances. This means that litigant

satisfaction might be substantially improved by having some time in which the litigant is

heard from directly. Further, cases remain in the system for a long time so that often

parent-litigants who can not afford to pay for the legal and expert fees, enter into

agreements at a time when they are financially drained, and emotionally and

psychologically spent. This frequently happens a point in time when parents do not feel

the facts of their case or their main concerns have been adequately addressed by those

steering the child custody outcome. Delayed resolution extends the time of vulnerability

for the parents and children, increases financial hardship for parents, places significant

burdens on court calendars, and erodes public confidence in the system (Report to the

Chief Justice o f New York State, 2006). Further, data from this study suggest that delayed

resolution might also be fostering a cycle o f repeat litigation.


The current civil court system in New York State, as described by most

respondents in all three groups appears to be “broken”. Law guiding judicial decision

making of child custody matters sets forth a mandate to support the best interest of the

child. The current civil court system in New York State, however, primarily relies on

zealous advocacy which generally exacerbates rather than dampens parental infighting

and does not provide parents with sufficient participation. Further, the traditional

adversary system often falls short of adequately addressing parental concerns, and

frequently permits cases to sit in the system for such a long time that usually one or both

parents run out of funds to continue litigation. It also might provide a substantial

advantage to the parent who can afford to keep the case going. Moreover, very often

parents’ finances become drained to the point where they just want to exit the system.

How can a system that renders parents financially bankrupt and desperate to exit the

system provide a fair process for those seeking justice? It does not. And this must change.

CHAPTER 6: DISCUSSION OF FINDINGS 147EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

CHAPTER 6: DISCUSSION OF THE FINDINGS

Introduction

This research examined how child custody cases are processed in a civil court setting

from the perspective of procedural justice. Lind & Tyler (1988) posit there are four key factors

that affect people’s perception of fairness based upon the treatment that disputants encounter by

a decision making authority. They include: (1) sufficient voice opportunity, (2) neutral and even

handed treatment, (3) trust in the decision maker, and (4) dignified and respectful treatment.

Because a vast majority of matters that pass through the civil justice system settle pre-trial, this

study explored whether the four key procedural justice criteria enumerated by Lind & Tyler

(1988), based on formal dispute resolution contexts are also relevant for litigant-parents who

settle their child custody matter informally prior to formal courtroom litigation.

According to the procedural justice literature, peoples’ experiences of procedural

fairness form their perception of the legitimacy of the institution providing the procedure

(Rankin & Tyler, 2009; Tyler, 1997; 2008). Data from this study suggest that parents’ first hand

encounters of civil court procedure involving child custody litigation often breaks their faith in

the justice system. Interestingly, most respondents in all three groups provided an unfavorable

description of civil court procedures that move a vast majority of child custody cases toward

settlement at the pre-trial stage of litigation. Further, even those parents who obtained favorable

outcomes, and law professionals who are knowledgeable of the system from insider (judges/law

secretaries), and outsider (attorneys) perspectives, said the process does not serve litigants well.


Why did these respondents in all three groups suggest that the court system is broken? An

examination of the study findings from the perspective of procedural justice will attempt to

provide an explanation.

First, this section includes a discussion of the pressures that move parents to settle and

how such pressures, absent parental participation, affects litigants’ fairness perceptions. Then, it

reviews how the very structure of civil court processes in conjunction with excessive time/cost

factors, might not only impede access to justice or a fair procedure, but also might foster a cycle

of repeat litigation.

Control over the outcome

As mentioned earlier in this paper, settlement assumes that litigants maintain control

over the resolution of their dispute because there is no outcome unless the parties enter into

their own agreement. Therefore, procedural justice should be of little concern because parents

who settle are obviously not subject to a judicial determination. So, why should the treatment

exhibited by a judge, court personnel, attorneys and others involved in the litigation process be

relevant, particularly among parents entering into a consensual agreement? Fist, data from this

study suggest that parents have little power over child custody outcomes even when cases settle

at the pre-trial stage of litigation. Second, data from this study suggest that parent-litigants view

the court, court appointed personnel and attorneys who control child custody outcomes as legal

authorities. This was supported by a wide majority of respondents in all three groups. So,

despite the consensual nature of settlement, the procedural justice paradigm appears to be

extremely relevant for parent-litigants. A wide body of procedural justice literature


demonstrates that the way in which a disputant is treated by an authority who controls the

disputed outcome will form the disputants’ perception of procedural fairness (Thibaut &

Walker, 1975; Tyler & Lind, 1988; Tyler, 1994; 2000; 200; Kitzman & Emery, 1995; Brentano,

2001; Blader & Tyler, 2003; Blader, 2006; Frazer, 2006; Hollander-Blumhoff & Tyler, 2008;

DeCremer & Tyler, 2007; Blader & Chen, 2012). Data from this study suggest that there is not

just one single decision making authority involved in contested child custody litigation at the

pre-trial stage (such as a judge who presides over a courtroom hearing) but parents view the

array of legal actors who have a substantial influence over the sum and substance of outcomes

as legal authorities. Because parents view these individuals as legal authorities with influence

over their child custody dispute, the treatment parents are endowed with by these individuals is

extremely relevant to their judgment of procedural fairness.

Treatment: Undue pressure to settle absent parental input

Most respondents in the parent and attorney groups said that parents are often treated in

a “rude” or “abrupt” manner by the others involved in the child custody litigation. Parents

generally do not participate in case conferencing. Occasionally they are addressed by a judge on

the record. However, the judges primarily interact with the attorneys. Most respondents in all

three groups said that parents often feel pressured by the court (via feedback they obtain after a

case conference), attorneys and court appointed personnel to resolve their disputes in one way

or another. Most parent-respondents who participated in this study said that they felt that they

were “bullied”, “coerced” or “pressured” to settle their case by one or all of the other


individuals involved in the litigation. Even most of those parent-respondents who eventually

obtained a favorable outcome said that they felt “bullied” or “pressured” to settle on terms they

were not happy with, or they felt were not in the best interest of the child at some point in the

litigation. For example, one mother who had been in contentious child custody litigation for

several years, said that she felt pressed by the court, court appointed personnel and attorneys, to

settle on joint legal custody even though she had repeatedly attempted to raise concerns about a

joint legal custody arrangement. She felt strongly that joint legal custody was not realistic in

light of her rapport with her spouse, as well as in light of concerns she had about her spouses’

judgment. She said that the information and concerns she wanted to have addressed and

considered by the others involved in the case “fell on deaf ears”. She also felt that rather than

taking her concerns seriously, that she was viewed by the court, court appointed personnel and

attorneys as “uncooperative”. She said that she would have been “forced” to settle on the terms

of joint legal custody had her husband not eventually been arrested and charged with criminal

neglect and endangerment of the children while the court case was open.

Most attomey-respondents appeared to be aware that parents often feel pressured or

coerced into settling on terms that they do not necessarily agree with or desire. Is the fact that

the court, court appointed personnel and attorneys who are working hard at assisting two,

polarized/warring parties in resolving conflicts being played out around their children, really so

bad? Aren’t these law professionals simply doing their job by helping parents avert a

contentious hearing? Most respondents in the judge/law secretary group said that the feedback


of the others involved in the procedure is invaluable in helping move contested custody cases

toward a settlement. Most attorneys also suggested that the feedback of the court and court

appointed personnel in conjunction with legal counsel, is extremely useful in helping parents

move toward a settlement.

Lind & Tyler’s (1988) Group Value model of procedural justice suggests that the

feedback offered by a legal authority (the person who controls the outcome of a dispute) could

potentially be consistent with, and might even enhance litigants’ perceptions of a fair procedure.

The group value model asserts that such feedback, however, must be offered only after an

individual has had ample opportunity to present relevant facts and information about the case to

those controlling the outcome. The litigant must also perceive that sufficient consideration has

been given to the information presented because this is key to the perceiving a fair procedure.

But does this happen? Are the suggestions that are made by the legal actors during the pre-trial

stage of child custody litigation being offered after parents have had an opportunity to present

facts and have their story duly considered? Do parents feel as if their issues, interests and

concerns involving the child custody arrangement have been adequately addressed and given

proper consideration by those who are in control of outcomes? The next section of this paper

will discuss the study findings which suggest that many parents feel excluded from meaningful

participation in the court procedure. This exclusion seems to impinge upon parents’ experience

of a fair legal procedure, as well as their experience of justice.


Exclusion: Parents feel voiceless & this impinges on fairness judgments

According to most respondents in all three groups, the treatment parents encounter

during the pre-trial stage of child custody litigation is essentially “non-treatment”, which was

described by most respondents in the attorney and judge/law secretary groups as the “nature of

the system.” A wide majority of respondents in all three groups confirmed that parents are

largely excluded from the process. The exclusion of parents from participation in the legal

procedure leaves them in the dark about what is going on. They wait all morning for the case to

be called only for the attorneys to back into chambers and conference the case with the judge or

law secretary. Thus, parents have little participation throughout the process. In fact, all of the

parent-respondents felt voiceless even though they had an attorney speaking on their behalf.

Parent-litigants generally felt that the legal actors who were involved in their case did not take

time to hear or consider facts and information pertinent to the case, and they felt their concerns

about the case were not taken seriously. As mentioned in the findings section of this paper, most

respondents in the judge/law secretary and attorney groups believe that parents are afforded a

voice through an attorney. There was agreement between all three groups, however, that parents

are left feeling voiceless because they have little involvement at court appearances.

According to the procedural justice theory, individuals who feel that they are provided

with ample voice opportunity tend to view procedures as more neutral, they generally have more

trust in the decision maker, and also feel more respected (Tyler, 1990; 1991; 2006). While

neutral treatment, trust and respect are all relevant to people’s procedural fairness perceptions,


the experience of being provided sufficient voice opportunity has the strongest influence on

fairness perceptions (Tyler, 1990; 2006; 2008). Further, litigants are more likely to accept

decisions and have a more favorable view of the legal system if they feel they had sufficient

voice (Tyler, 1994).

Exclusion leads to distrust o f the others involved in the procedure & impinges on fairness judgments

A finding of this study is that parent-litigants want to have more direct voice

opportunities during the legal procedure. This was supported by a majority of respondents in all

three groups. Parent-litigants want to directly voice facts and information about their case, as

well as their concerns to those who are steering the outcome, and have a full understanding of

the information and issues discussed between the attorneys, the court and the attorney for the

child. After a long time in litigation parents become extremely frustrated because they do not

know what is going on, they are unaware of what is being discussed about their case in the “back

room”, and they view the others involved in the litigation process as unwilling to listen or regard

their concerns. Parents feel as if their case is a number on a wheel being pushed through an

overburdened court system with little attention given to the facts of the case. Most attorneys

acknowledged that the issues and parents often wanted to have addressed were frequently

brushed aside, or left unacknowledged by the others involved in the case. This erodes parental

trust in the court and the others involved in the case, because a great deal of time passes,

finances are dramatically depleted, and the case remains in the system with no one paying

attention to the parents concerns and the information they want presented related to the case.


Eventually agendas are pushed to resolve the case in one way or another by the court and

attorneys, however, with little regard for the parental input. On top of all this, many parents are

treated in an abrupt or rude manner by the court, court appointed personnel, and sometimes even

by their own attorneys.

The group value model posits that when a litigant perceives a legal authority controlling

outcomes as dismissive, rude, cold or uncaring, they will not trust that individual. This lack of

trust substantially impinges on peoples’ perceptions of procedural fairness.

Data from this study suggest that parents are often left feeling as if there is a single push

toward settlement by the others involved in their case with insufficient time and attention given

to the facts of the case. The pressure placed upon parents by others involved in the litigation to

settle their case in one way or another absent sufficient consideration of the facts and

information involving the case leaves parents feeling frustrated, demeaned and disrespected.

Thus, parents often feel as if the child custody terms have been developed by and between the

legal actors in a black box with little regard for the real-life issues pertaining to their case. They

are often left feeling as if they were pushed into a “cookie cutter” arrangement and this treatment

breaks parents’ faith and trust in the individuals involved in the litigation, as well as breaks their

faith in the system generally.

Why inclusion matters

The need for inclusion in court processes has been documented in prior research

conducted by Lind, et al. (1990), who looked at litigant satisfaction of four different court


processes. These court processes included two informal procedures including pre-trial attorney

negotiations and judicial settlement conferencing, and two formal procedures, including

arbitration and trial. Findings from Lind et al. (1990) demonstrated that litigants satisfaction was

ranked lowest in the informal processes of negotiation and judicial settlement conferencing

processes even though litigants arguably retained the most control in these processes because

they require consensual agreement by both parties. The most significant difference between the

formal and informal venues was that litigants were excluded from the informal processes by the

judge and attorneys. On the other hand, litigants had the opportunity to participate in the more

formal court processes of arbitration and trial. Lind et al. (1990) found that attorneys and judges

viewed litigant participation as impractical and even counter-productive, as did a majority of

respondents in the judge/law secretary and attorney groups who participated in the current study.

The effect of excluding litigants from legal processes that determine the parameters of their

children’s custody denies them the chance to observe what their attorney is saying to the others

involved in the litigation. This likely results in negative judgments about procedural fairness

because the process lacks transparency. The lack of transparency results in parents feeling

ambiguous about what is being discussed between the court, attorneys and court appointed

personnel. For example, all parent respondents said that they had no idea about what was being

discussed in the “back room”. According to the group value model of procedural justice (Lind &

Tyler, 1988), litigants desire dignified and respectful treatment because this reassures them of

their status in society. When litigants are left waiting in the hall while the attorneys go in and


conference with the judge or the law secretary, parents have no way of knowing if their voice is

being represented by their attorney. They have no way of knowing what is being said about the

case or if what they want raised is being considered. Further, most respondents in all three

groups suggested that such exclusion is inherently undignified and demeaning. Thus, parents

perceive that they are not a valued member of the “group”.

Early procedural justice research (Walker et al, 1974), suggested that litigants can

perceive sufficient voice through an attorney. This occurred when they had an opportunity to

observe what the attorney was representing to the court in the context of formal courtroom

procedures. Formal courtroom processes are transparent and litigants have full view of what

their attorneys are representing to the court, as well as the facts and information that the court

considering. Further, testifying on the record affords litigants direct participation in the process.

In contrast, the current procedure in the New York State civil courts funnels a majority of cases

toward settlement absent a formal courtroom hearing and litigants have very limited ability to

participate. Parents do not know what is being represented during court conferences, which was

a major issue conveyed by all parent-respondents, as well as acknowledged by a majority of

respondents in the judge/law secretary and attorney groups.

While the findings of this study cannot be generalized because of the small number of

respondents in each group, it is important to note that all parent-respondents (regardless of

having obtained a favorable or unfavorable outcome) felt excluded from meaningful

participation and lacked sufficient voice opportunity, even when they were happy with their


attorney. Therefore, it could be inferred that parent-litigants require more direct participation

than the current traditional adversary system permits during the pre-trial stage.

Advantage for those who can drag on the litigation.

Data from this study suggest that parent-litigants who can afford the associated legal and

expert costs of protracted child custody litigation personal wealth have an advantage in a

traditional adversary civil court system. In light of the new legislation that has been implemented

in an effort to equalize the financial playing field between the monied and non-monied spouse,

it is not clear as to who exactly is advantaged.

Other factors influencing fairness judgements: Undue time/cost, & repeat litigation.

Data from this study suggests that time and cost factors, which fall outside of the

procedural justice paradigm, also influenced parent-litigants procedural fairness judgments. Data

from this study suggests that parents often settle because they can no longer withstand the

associated time, cost and psychological pressure associated with protracted child custody

litigation. It should be noted that many parent-respondents who felt pressure to settle because

they could not afford to continue to subsidize the legal and expert fees associated with protracted

child custody litigation returned to court within a year of settling. Data from all three respondent

groups identified time and cost as playing a significant role in moving a case toward settlement.

Most judge/law secretary and attorney group-respondents suggested that when parents enter into

a settlement based upon undue time and cost demands, that those individuals are more likely to

return to court and re-open the litigation. Thus, there was consensus between all three groups

that parents often settle to exit the legal system at a point when there has already been protracted


litigation, and they are psychologically and financially spent, and this negatively influences

parents’ judgments of procedural fairness. This supports data from a study conducted by

MaaCoby and Mnookin (1992) who indicated that parents in California were entering into child

custody agreements to avoid expensive child custody litigation. They also suggested that this

was a point of concern among high conflict parents who were settling on parenting arrangements

that were not conducive to the children’s welfare in light of the highly contentious parental

dynamics. Thus, parents could potentially be returning to court because the agreements that they

felt pressured into entering simply may not be viable.

Conclusion

This research examined how child custody matters are processed through the civil justice

system from the perspective of procedural justice, and considered the central features of civil

litigation during the pre-trial stage from the standpoint of the group value model. This model

evaluates the way in which voice opportunity , trust, dignified and respectful treatment, and

neutrality influence people’s perceptions of a fair procedure. Findings from this study suggest

that the experience of procedural justice is important for a settlement population, particularly for

parents who settle their child custody disputes at the pre-trial stage of litigation. Findings also

suggest that the current structure of civil litigation impedes parents opportunity for voice, leaves

parents generally distrustful of the process as well as distrustful of those involved in the process,

and leaves them feeling demeaned (parents so not feel like an important component of the

procedure). Findings from this research suggest that the group value model provides an

important perspective from which to consider the procedural fairness of our legal system even


when litigants enter into consensual agreement in an informal setting, however, time and cost

(which fall outside of the procedural justice paradigm) were also relevant to a settlement

population. This is because while parents are entering into a volitional agreement, they are often

doing so under a great deal of pressure from the others to do so, as well as caving in to

agreements because of undue time and cost pressure to exit the legal system. Finally, data from

this study suggest that the exclusion of parents from participation in the legal process falls short

of providing them with the experience a fair court procedure, breaks trust in the legal system,

and might be fostering repeat litigation.

CHAPTER 7: POLICY IMPLICATIONSEVALUATING FAIR PROCESS CRITERIA FOR PARENTS WHO SETTLE

160

CHAPTER 7: POLICY IMPLICATIONS

This study examined the quality of peoples’ court experience using the group value model

of procedural justice. Findings from this study suggest that policy be developed which prescribe

structural changes that make the process more inclusive of parents and more efficient.

Data from this study suggest that providing a mechanism that brings litigants into the process

would not only provide a parents with a venue for direct participation, but it would also offer a

more dignified procedure.

Inclusion Through Informal Processes

An example of creating opportunities for participation is the use of informal procedures

such as mediation. Mediation, unlike trial or case conferencing, provides litigants with a venue

in which they can be directly involved in the outworking of their child custody disputes. During

mediation parents have the opportunity to tell their story and present relevant facts and

information about their case directly to a neutral third party and to each other. A body of

research conducted over the past two decades suggest an array of benefits from mediation,

especially for the purpose of resolving child custody and parenting issues (Emery, Sbarra &

Grover, 2005; Kelly & Emery, 2003; Emery, 2011). Parties in mediation indicate greater

satisfaction with the process over litigation or adversarial settlement (Pruitt, et al., 1993).

Satisfaction with the process often increases satisfaction with the outcome and this in turn leads

to increased compliance (Tyler, 2006; Blader & Tyler, 2001). Research also indicates that the

range of agreements resulting from mediation is comparable to those in the general divorcing

CHAPTER 7: POLICY IMPLICATIONS 161EVALUATING FAIR PROCESS CRITERIA FOR PARENTS WHO SETTLE

population. However, there are major differences in the practical nature and quality of parent-

child relationships post-divorce mediation than from those post-litigation, especially concerning

involvement of the non-custodial parent (Kelly & Emery, 2003; Emery, 2012).

Data from this study suggest that child custody issues be diverted to court based

mediation early in the court process. For example, when asked about how the process might be

improved for parents, most respondents in the judge/law secretary group and many attomey-

respondents suggested mediation be provided early on in the court process. Most respondents in

the judge/law secretary group and many in the attorney group indicated that they felt mediation

would provide a process for parents to resolve their child custody disputes at the early stage of

the court procedure because it is less adversarial than litigating the issue. They suggested that

mediation can help the parties in diffusing their conflicts and move toward a more civil

resolution. Further, agreements achieved in mediation are generally based upon the participation

and feedback of the parties themselves.

The suggestion by most respondents in the judge/law secretary group, and many in the

attorney group, calling for early, mandatory mediation of child custody matters, supports policy

recommendations contained in the Matrimonial Commission’s Report to the Chief Judge of the

State of New York (2006), which also suggested that court based mediation be provided for

families with children involved in matrimonial and family court litigation. The report further

indicated that mediation is recognized as effectively reducing the delay, expense and trauma to

families, associated with child custody litigation. In fact, almost all of the individuals in the

judge/law secretary group and many in the attorney group suggested mediation be offered to

improve the process. Most of these respondents also said that mandating mediation in the New


York State courts would be extremely difficult because the matrimonial bar would perceive it as

cutting into their livelihood.

Currently more than forty states have some statue or court rule that encourages mediation

of child custody issues (Matrimonial Commission Report to the Chief Judge of New York State,

2006). Thirty states have a statue or rule that authorizes the court to send parties with

custody/parenting time issues to mediation or other form of dispute resolution. Fourteen states

mandate referral of custody and parental access issues to mediation. Twelve of these states

contain exceptions when good cause is shown usually when domestic violence is an issue. New

York State, however, has no policy or court rule referring child custody matters to mediation

either in the civil or family courts.

Drug Court Model

Drug courts combine principles of law and of psychology by integrating treatment with in

a structured legal setting (Maeder & Wiener, 2008, p. 543). Studies involving litigant

participation in special drug courts (Berman & Gold, 2012; Rossman et al., 2011; Frazer, 2006)

demonstrate that even in courts with substandard facilities and overwhelming caseloads there can

be substantial benefits from minor modifications based upon the way in which litigants are

treated by the court, attorneys and court staff. Drug courts emphasize a less adversarial and

rehabilitative approach to dealing with litigants then occur in a traditional criminal courts. Court

personnel and court staff convey that they are vested in the well being of defendants, and endow

them with dignified treatment. In essence, drug court staff and the court appear approachable and

accessible. The culture of drug courts is vastly less adversarial than in more traditional courts.

This humanizes the entire litigation experience, and makes it a less adversarial, more accessible,


and more dignified procedure. Studies comparing drug courts to more traditional criminal courts

suggest that defendants are more satisfied with drug court procedures than with traditional courts

(Berman & Gold, 2012). Not only are defendants more satisfied with the drug court procedures,

but drug courts work (Berman and Gold, 2012; Rossman, 2011; Frazer, 2006). “While the costs

of operating a drug court are not insignificant (including case managers, substance abuse

treatment, and increased court oversight), the return on investment in terms of reduced

criminality more than outweighs the expenditure” (Berman and Gold, 2012, p. 20).

The example of drug courts providing a more procedurally just experience with front

loaded services that enhance defendant satisfaction, as well as their experience of fair legal

processes, and reduction of criminality, can be translated to child custody litigation. Like

criminal matters, child custody matters are subject to high ‘recidivism’ in the form of post

judgments (Brentano, 2001; Matrimonial Commission Report, 2006). Providing model court for

the process of child custody matters that offers screening, tailored service recommendations

including mediation, and case management to ensure timely resolution, might not only offer

parents substantial participation, but it might also humanize the process and make it a less

confusing and a more dignified procedure. Further, such model could potentially assist in

expediting the resolution of the child custody component of matrimonial matters to resolve

during the early stage of litigation before parents become financially and emotionally burned

out. In fact, much like the drug court model, child custody model courts implemented in

Connecticut, New Jersey and in other jurisdictions which provide screening and appropriate

needs-based services including mediation, by social workers and other human service

professionals, have proven to be highly successful in expediting resolution and providing litigant


with direct participation, as well as improving compliance (Matrimonial Commission Report to

the Chief Judge of New York State, 2006, p. 20-21).

Data from this research suggest that parents need more direct participation in order to

experience a fair procedure. Data further suggest that developing a policy which diverts child

custody matters out of a traditional adversarial system early on, to court based mediation would

help improve the processes for litigants-parents by affording them a direct voice at the early stage

of the court process, and also by potentially expediting a resolution to the matter through a more

constructive dispute resolution process. Implementation of such policy also has the potential to

resolve a substantial number of cases early on so that those cases who do not resolve are more

likely to access justice and be heard by a judge in courtroom litigation. The hope is that such

policy would enhance the experience of a fair and just procedure for parent-litigations who come

to court needing assistance in resolving their child custody conflicts.

Bifurcation and Early Hearing.

It is well know that child custody disputes are costly. The main reason for the excessive

costs of such disputes is because the current adversary system in New York State permits cases to

remain in the system for far too long. Data from this study suggests the expense of child custody

litigation places a great deal of pressure on parents to exit the legal system, and they are exiting

the system at a stage in the litigation when they are financially spent and psychologically burned

out. This impinges upon parents’ experience of a fair procedure. Data from this study also

suggests that those litigants who settle due to undue time, cost, and emotional pressure to exit the

legal system, may be more likely to return to court..


In order to enhance the experience of a fair process for parent-litigants, and expand access

to justice, policy is needed that adheres to more stringent time lines for the resolution of child

custody. Data from this study suggests that one way to do this is to develop policy requiring that

cases that do not resolve through early mediation as well as cases that are not appropriate for a

mediation setting (those matters involving domestic violence) or which require the protection of

the court, should have immediate access to a bifurcated hearing on the issue of child custody.

Much of the findings of this study are consistent with the Report to the Chief Judge of the State

of New York (2006) which suggested, “Where a trial becomes necessary on issues of custody or

relocation, such trials be scheduled early and given preference by the court where practible”

(2006, p. 25).

In fact, data from respondents in the Bar and Bench groups who participated in this study

also suggests that bifurcating child custody would increase litigant satisfaction with the court

procedure. First, providing litigants with an expedited hearing on the issue of child custody early

in the litigation process would increase their access to justice by offering an additional avenue for

parental participation. As mentioned earlier, Lind et. al (1990) found that litigants were more

found a formal courtroom hearing to be substantially more satisfying and more fair than litigants

who resolved their disputes through informal processes of negotiation and judicial settlement

conferencing. This is because the informal processes of negotiation and settlement conferencing

offer litigants no participation, while a courtroom hearing provided them with participation by

giving testimony on the record. Diversion of the case to a bifurcated, early hearing of the child

custody issue would, therefore, provide an additional venue in which parent-litigants could

participate directly in the court procedure, and be heard when they are being prepared for trial


and also by providing direct testimony on the record. So, in many instances, referral to an early

hearing may substantially enhance the ability to participate and provide a direct voice opportunity

for parent-litigants. It may also expand access to a courtroom hearing for litigants who are unable

to bridge their child custody disputes prior to a point in time when they become financially and

emotionally spent. Also, the potential for either spouse to drag out the litigation for a protracted

period of time until the other caves in, would essentially be eradicated because policy directing

an early hearing early would put an end to the dispute.

Perhaps, most importantly, a bifurcated, early child custody hearing would help protect

children from being used as leverage for other components of the matrimonial case. Data from

this study suggests that the issue of child custody is often used to leverage other facets of the

matrimonial dispute. For example, respondents in the judge/law secretary group and many in the

attorney group suggested that oftentimes the custody issue is tied to financial interests, and child

custody is used to leverage other facets of the case including support and equitable distribution.

During matrimonial litigation children are often used as “pawns for other items in the divorce”

such as lowering support, or for more equitable distribution. An early hearing would prevent this

because the child custody component would be decided early on in the court action, and the other

facets of the case would be left to rest on their own merits.

Further, respondents in the judge/law secretary and attorney groups suggested that once

the chid custody component of the matrimonial dispute resolves, facets of the case including

support and equitable distribution are more likely to be resolved. Looking at the big picture, this

translates into the potential for divorce matters to be settled more quickly than what currently


occur. This is mainly because the other facets of the matrimonial case often hinge upon how the

issue of child custody resolves.

Offering front load services to families contesting custody that include early screening,

referral to mediation and a bifurcated hearing of child custody (a hearing on the issue of child

custody separate and apart from the other issues involved in the case) may be a challenge to

implement because of the costs of subsidizing professionals to conduct screening, mediation and

case management. However, it is likely that if courts spend a little more time up front, there will

be a substantial return in savings of both time and resources down the road (Berman & Gold,

2012, p. 22). Further, the aim of a model court would be to expedite child custody cases within

the structure of the courts, however, through processes that parents experience as more fair and

dignified. As mentioned earlier, there is a wide body of research demonstrating that when people

judge a process to be fair they are more likely to comply with outcomes arrived at through that

process. Thus, providing a model court for parent-litigants has the potential to translate to

enhanced fairness judgments, which would result in greater adherence to child custody decrees,

thereby reducing the incidence of repeat litigation. It may also translate to enhanced perceptions

of the legitimacy of the courts and overall access to justice.

Disseminating Procedural Justice Research.

Much of the data from this study supports recommendations that were made in the Report

to the Chief Judge of the State of New York, Matrimonial Commission Reoport (2006).

Moreover, there is over 40 years of research on procedural justice in the courts. As often occurs,

however, there remains a disconnect between the existing body of knowledge and dissemination

of this information to those who need it most: attorneys, judges, courts, court staff and court


administrators. In order to bridge this disconnect, professionals who conduct procedural justice

research, including academic social workers, lawyers and psychologists, can disseminate

procedural justice information to law professionals by publishing in law journals, such the court

review, and also by attending and participating in judicial-education and training seminars, and

conferences that judges, attorneys and court personnel attend (Burke & Leban, 2007). These are

major venues that researchers can use to reach law professionals and court administrators with

information so that sound academic, social-science research is shared in forms that are likely to

produce change within the courts (Burke & Leban, 2007).

Disseminating Procedural justice research through formal & continuing education.

A wide body of research suggests that the importance of procedural justice is not limited

to family law practice. It is relevant to litigant experiences with the American justice system

generally. The importance of procedural justice should, therefore, be conveyed to all law

professionals as a foundational component of their education. Professionals who are

knowledgeable of court operations can develop an intensive course of study involving procedural

fairness based upon the implications of social-science and procedural justice research involving

procedural fairness in the courts.

Course work involving procedural fairness should not be considered a stand-alone subject, but it should be integrated into virtually all judicial-education subject areas (Burke & Leben, 2007, p.23).

This course of study could be included as a core component of the curriculum for all students

pursuing a law degree, as well as for students pursuing a duel law/social work degree (JD/MSW).

It could also be taught through required continuing law education (CLE) credits to reach


attorneys and judges who are already in practice. Integrating procedural justice courses as a core

component of law school education curriculum, and through continuing law education credits,

would ground current and future law professionals and judges in a knowledge of procedural

justice, so that they can begin to incorporate the principals of procedural fairness in day to day

practice and in court operations.

Further, as noted above, a duel JD/MSW degree is offered in a substantial number of

colleges and universities around the country for students concentrating in family law, and for

students who are interested in serving other vulnerable populations. The duel JD/MSW degree is

designed to utilize the problem-solving strategies and techniques in both law and social work

disciplines. Thus, social work professionals who are knowledgeable of court processes and who

have an advanced degree have a venue by which to ground future professionals whose vocation is

in the legal arena, in a knowledge of procedural justice.

Conduct research to develop more inclusive rules and procedure.

Previous research (Tyler, 1990; 1997; 2001; 2008) has demonstrated that people’s

perceptions of procedural fairness can have a profound influence upon people’s attitudes about

outcomes arrived at through the justice system, compliance with court orders, and legitimacy of

the justice system. Social work, law and psychology researchers should, therefore, commit

greater attention to developing rules and procedure that foster enhanced experiences of fairness.

Data from this study support the broader body of procedural justice research that posit a key

component of the experience of a fair process is the need for litigants to feel sufficiently heard

during the court procedure. The traditional adversary system in New York State offers extremely

limited direct participation, so greater attention must be paid by law, social work and psychology


researchers involving developing rules of procedure that enhance opportunities for litigants to

directly participate in the process.

Concluding Comments.

Litigants who come through the civil justice system have a right to be treated with respect

and to be listened to during the process (Sunshine & Tyler, 2003). Data from this study suggests

that sufficient court personnel and judicial officers must be provided so that the court calendar

can be managed in a manner that respects these rights, and in turn, enhances litigant respect for

the judicial system, it’s judges and court personnel. Adequate numbers of judges and court staff

must be able to handle the high volume of cases that pass through the court, so that litigants feel

that they have been listened to and respected and their concerns have been addressed. While the

policy suggestions in this section require substantial additional resources in terms of court staff

that do not come cheaply, the potential advantages in terms of enhanced litigant perceptions of

procedural justice, accompanied by the potential for settlement of many cases at the early stage of

litigation, decreased burden on court calenders, expansion of access to a courtroom hearing, and

decreased repeat litigation, would be well worth the return on investment.

CHAPTER 7: POLICY IMPLICATIONSEVALUATING FAIR PROCESS CRITERIA FOR PARENTS WHO SETTLE

CHAPTER 8: PRACTICE IMPLICATIONS 171EVALUATING PROCEDURAL JUSTICE CRITERIA FOR PARENTS WHO SETTLE

CHAPTER 8: PRACTICE IMPLICATIONS

A wide body of procedural justice research finds that the extent to which people perceive

court processes as fair affects their satisfaction with the legal system as well as their adherence to

legal decrees (Tyler & Folger, 1980; O’Barr & Connley, 1990; Brockner & Weisenfeld, 1996;

Brentano, 2001; Blader & Tyler, 2001; Tyler & Huo, 2002; Burke & Leben, 2007; Rankin &

Tyler, 2009; Rossman, Roman & Zweig, 2011; Tyler, 1990; 2000; 2006, 2012; van der toom,

Tyler & Jost, 2011; Berman & Gold, 2012). Moreover, it affects their acceptance and compliance

with legal decrees even when an unfavorable outcome is obtained (Tyler, 1990; 2006). This does

not mean that litigants are happy when they obtain an unfavorable outcome, but they are more

willing to accept and comply with outcomes if they perceive the decision making process as fair

(Brentano, 2001; Tyler, 1990; 2006). This research raises some important questions: How can the

experience of a fair procedure be enhanced in the courts? Are there specific practices that can be

implemented in the courts in order to improve litigants’ perceptions of procedural fairness?

Enhancing public trust in the courts and the judicial system generally are goals that legal

reformers have struggled with for years (Matrimonial Commission Report the Chief Justice of

New York, 2006; Sunshine & Tyler, 2003). Often, however, the justice system strives more at

attaining fair outcomes than it does in considering how the process itself might impact litigants

view of the system (Hollander-Blumhoff, 2011; Sunshine & Tyler, 2003). Data from this study,

however, suggests that the court personnel and the other legal actors who are involved in child

custody litigation, must be made aware of the way in which their actions, language, and the

treatment they endow upon litigants, has a substantial influence upon litigants’ fairness


experiences, and judgments of the legal system. Thus, court personnel and others involved in

child custody litigation can alleviate much of the public dissatisfaction with the courts by paying

more attention to how litigants are treated. The next section of this paper will highlight

suggestions for improving practice within the day to day operations of the court with the intent of

promoting procedural fairness and with an emphasis on how the expansion of social work

practice in this area of the law can assist in promoting access to justice, and enhancing litigants’

experience of a fair procedure in the resolution of child custody during matrimonial litigation.

Dignified Treatment.

Data from this study suggests that the way people are treated during court appearances

influences their view of whether or not the procedure was fair. The vast majority of cases never

make it to a courtroom hearing, so litigants’ impressions of the courts will largely be formed by

the treatment they encounter by the court and other legal actors during court appearances. Data

from this study suggests that parents are often treated in an disrespectful and demeaning manner.

Most parents reported that they encountered some form of rude or harsh treatment by some or all

individuals involved in their case during the pre-trial stage of litigation. Many felt that they were

bullied by the judge and attorneys to accept settlement terms they did not like or believed were

not in the interest of their children, and a few parents even described the treatment that they

experienced as abusive. Most attorneys who were interviewed also acknowledged that the

treatment that parents encounter during child custody litigation is often rude, abrupt and often

leaves parents feeling demeaned.


Educating Judges, Court Staff and Court Administrators.

Both common sense and procedural justice research tell us that litigants are affected by

the way in which they are treated by legal authorities. Thus, in order to improve fair practice

within the courts the legal authorities involved in child custody litigation must treat parent-

litigants with dignity and respect during court appearances. Data from this study suggests that

parents often feel as if they are spoken at and not spoken to. Curtailing negative emotions

including anger, yelling and sarcasm, and addressing litigants in a respectful tone rather than with

exasperation, would go a long way in enhancing fair practice within the courts. Being aware of

how non verbal cues might influence litigants, including facial expressions, the pitch and volume

of tone used when addressing litigants, body language, and other non-verbal cues, such as eye

contact would also provide a more dignified procedure (Porter, 2001). The legal actors involved

in child custody litigation must being to think about and become cognizant o f treating litigants

with dignity, and be educated as to how their behavior affects litigants’ perceptions of procedural

fairness. Utilizing existing research involving verbal and non verbal communication,

professionals can be enlisted to train judges and court staff as to how they can improve

communication with litigants. Further, most judges, court staff, and attorneys would benefit from

obtaining objective feedback regarding the verbal and non-verbal cues they are giving, along with

specific suggestions for improvement, which could be provided by social work and other

professionals during court training sessions, as well as during court seminars and at judicial

conferences. In this way, data from procedural justice research can be disseminated to the court,


court staff and others so that law professionals and other court staff will gain an understanding

of the role they play in influencing litigants’ perceptions of procedural justice.

Respectful treatment by the court and others involved in the process would be a step

toward enhancing fair practice within the courts, however, the procedure occurring in a

traditional adversary system typically fails to offer parents any substantive venue for direct

participation. A finding of this study is that parents have insufficient direct voice opportunity in

civil justice setting, which dramatically impinges upon their experience of a fair procedure. In

fact, all parent-respondents reported this even though they all had legal representation throughout

the litigation process. Most judges and attorneys acknowledged that parents are exceedingly

frustrated by the lack of direct voice opportunity, however, they said view parents voice as being

sufficiently communicated through an attorney.

The dissonance between law professionals and parents involving their perceptions about

litigant participation, suggest that the meaning of fairness to law professionals is very different

from that of parents. As noted earlier, this is a problem because this affects both satisfaction and

compliance with child custody decrees (Brentano, 2001), and people’s judgments of the court

system generally (Tyler, 2001, 2006). Judges, attorneys and court appointed personnel, who are

aware of this dissonance can better tune into the needs and expectations of litigants to help

ensure better satisfaction and compliance. Thus, the court, court personnel and other law

professionals involved in child custody litigation must develop practices within the courts that

provide a more inclusive and dignified venue for parent-litigants. Such practices must convey the

sense that litigants’ main concerns are being addressed and considered, which, in turn engenders


a feeling of trust in those involved in the procedure. As mentioned above, social workers,

attorneys and other professionals can begin to address this dissonance through training and

educating judges, court staff and court administrators in the courts, and through attending judicial

conferences and seminars.

Expansion of Social Work Practice in The Courts

Many of the respondents suggested mediation as a mechanism to improve procedural

fairness in the courts. Mediation is a practice that is generally facilitated by social workers in the

court system and can bride the divide between litigants’ desire for greater direct participation and

the courts aim to attain a fair resolution (Matrimonial Commission Report to the Chief Justice of

New York State, 2006; Welsh, 2001). Data from this study suggests that social work practice in

the courts in the context of facilitating mediation be expanded matrimonial matters involving

children in order to provide a venue for parents to participate early in the court procedure. This

data supports recommendations in the Matrimonial Commission Report to the Chief Judge of

New York State (2006), which states,

In certain parts of the state, the court system has successfully employed social workers (MSWs) to assist matrimonial judges in resolving custody and parenting time disputes. The Commission recommends that social workers be employed in each of the State’s larger counties and one in each of the five boroughs of New York City. In other parts of the state, social workers could be utilized on a regional basis (p. 21).

Mediation affords people with a forum that is more consistent with peoples’ expectations

of participation in a legal procedure litigants with direct participation, and greater control over

outcomes (Kitzman & Emery, 1993; Report to the Chief Justice of New York State, 2006).

Further, mediation offers a venue that is more transparent than the traditional courts provide in


which litigants interact directly with the mediator and each other, raise and address salient issues

about their case, and ascertain whether the mediator is listening and using important information

in assisting the parties to move the case toward their own resolution. Mediation also offers

parent-litigants the substantial opportunity for them to express their issues, interests and concerns

about the case, as well as may provide them with a sense of status and respect even if the case

does not settle (Welsh, 2001).

Good mediation practice places the litigants at center-stage, offers substantial

participation, and endows litigants with dignified treatment (Welsh, 2001). Further, in mediation

litigants must be afforded sufficient time to consider the terms of settlement proposals, and have

their questions involving the settlement terms clarified by their attorneys. For mediation to

improve procedural fairness, parents must also be aware that they have the right to reject any

potential settlement proposals, and if they can not reach an agreement, they must have access to a

hearing on without any fear they will be penalized for doing so. In other words, litigants should

not feel coerced or pressed into accepting a mediated agreement. This is important because data

from this study suggests that some parents entered into agreements because they feared that they

would be penalized for proceeding. Litigants must be made aware of the fact that if they are

unable to achieve a resolution in mediation, that it is their right to proceed and have a fair hearing

on the issue in dispute. Further, mediators must make sure that the parties have proposed

settlements reviewed with their attorneys.


As a Matter o f Practice: Litigants must have a clear understanding o f any proposed agreements and time to consider such proposals prior to signing.

Data from this study suggests that some parents are pressured by judges and attorneys into

signing a custody agreement without having been provided sufficient time to obtain clarification

about what they are signing, with little or no understanding of the legal or practical ramifications

of the proposed agreement. As a matter of practice, litigants must be provided with a clear

explanation of what they are about to agree to and also be provided with sufficient time to

consider whether they wish to settle on the proposed terms, or if they would prefer to go to a

hearing. Many parents who participated in this study were not provided sufficient time to

consider the terms of settlement and felt unduly pressured to settle their cases. While it is the role

of an attorney to explain settlement terms prior to execution, this did not always happen for many

parent-respondents who participated in this study.

Obtaining Litigant Feedback.

One way to convey that the courts respect litigants would be to provide them with the

opportunity to evaluate their experience. This would also provide litigants with the opportunity to

voice their concerns about the fairness of the system, and provide courts with feedback that could

help the system improve.

Implications for Clinical Social Workers

Data from this study suggests parents feel powerless and voiceless throughout the court

process. Data from this study also suggests that the traditional adversary system often escalates

rather than dampens conflicts between parents during child custody litigation. Clinical social

workers who provide counseling for parents during the time of separation and divorce must be


aware of parental feelings of powerlessness and voicelessness during child custody litigation.

Understanding the key elements of procedural justice can help them to better understand what

their clients can expect from the adversary system, and help to guide them during a legal

separation or divorce. Clinical social workers can suggest that parents attempt to mediate their

separation or divorce prior to retaining an attorney and commencing a court action (as long as

they believe that both parents are acting in good faith and neither parent or the children require

protection). Clinical social workers can also provide support for parents who are already involved

in child custody litigation by normalizing feelings of powerlessness and voicelessness and

providing parents with a place to vent and tell their story. More importantly, clinical social

workers can help their clients shift their focus onto what they can do to help themselves and their

children during contentious child custody litigation. They can help parents develop insight into

their own behavior and reactivity to their spouse during the court procedure, help to establish

healthy boundaries with their spouses, and help them to develop techniques to disengage from

the patterns of reactive conflict, anger and parental infighting that are common during child

custody litigation. In other words, clinical social workers can empower their clients to “act”

rather than “react” with the aim assisting their clients with disengaging from their spouse and de-

escalating conflicts during the period of litigation. By doing so, clinical social workers will assist

parents in moving away from their sense of helplessness and powerlessness in the context of the

court litigation, and help them to shift focus onto what they can do to improve their situation.

CHAPTER 9: FUTURE RESEARCH IMPLICATIONSEVALUATING FAIR PROCESS CRITERIA FOR PARENTS WHO SETTLE

179

CHAPTER 9: FUTURE RESEARCH IMPLICATIONS

Summary of Findings

This research explored some of the central features of civil litigation of contested child

custody matters from the standpoint of procedural justice. It highlighted aspects of the system

that affected the participants perceptions of the fairness of court processes at the pre-trial stage of

child custody litigation. Findings from this study were used to expand the social work knowledge

base by examining and identifying factors that were salient to parents who settled child custody

disputes at the pre-trial stage of litigation. The study contributes to the body of procedural justice

literature. More specifically, it suggests that the key factors outlined in the group value model

including voice, trust, respect and neutrality and bias treatment, are relevant for parents who

settle their child custody disputes informally, pre-trial. Data further suggests that time and cost

considerations, which fall outside of procedural justice paradigm, are also relevant to people’s

experience of a fair procedure. Some interviews suggest possible gender bias toward the mother

for residential custody through the laws are technically gender neutral, as well as a leaning in the

system to move cases toward joint legal custody even in instances where such arrangements are

not viable. Data from this study also suggests that the system might provide an advantage to the

spouse who can afford to subsidize protracted child custody litigation, when the other can not.

Although the findings of this study apply only to those who were interviewed, they suggest a

number of questions for future research.

CHAPTER 9: FUTURE RESEARCH IMPLICATIONS 180EVALUATING FAIR PROCESS CRITERIA FOR PARENTS WHO SETTLE

Use of additional methodological frameworks.Multi-sight, longitudinal study.

There were several limitations to this study that future research could address. This study

was conducted in one civil court jurisdiction located in New York State. So, future research

could use a multi-sight case study design in New York State to ascertain whether people have

similar views of procedural fairness and of the legal system in other jurisdictions within the same

state.

Conduct research contrasting litigant perceptions ofprocedural justice in different State courts containing mandated mediation/special courts with those states that do not have such programs.

Data from this study suggests that parents might be more satisfied in courts that provide a

process that is more inclusive and provides litigants with more direct participation in resolving

their child custody disputes. Future research should, therefore, consider using a

qualitative/quantitative, multi-site, longitudinal sample across different states to compare parent-

litigant perceptions of procedural justice and procedural satisfaction in states that utilize special

courts or mandated mediation of child custody matters (such as in Connecticut, New Jersey, or

Florida) with states that rely primarily upon traditional adversarial court processes (such as in

New York). These studies should evaluate parent-litigant’s evaluations of key procedural justice

criteria, including participation and how such participation influences their perceptions of

faimess/satisfaction of the court procedure, as well as whether time and cost factors influence

fair process judgments and procedural satisfaction in different state courts. This study should be

longitudinal in order to assess the incidence of repeat litigation in different state courts, as well.


QUANTITA TIVE ANAL YSIS.

Conduct quantitative analysis ofpeople’s experience ofprocedural justice and the legal

system.

Quantitative analysis could be conducted to see whether the findings from this study are

broad based. A Likert scale or survey could be developed to measure the extent to which parents

perceive decision control, the extent to which parents perceive they have a voice in the process,

whether they feel respected and trust the others involved in the litigation, evaluate bias parents

experience (if any), and whether time and cost factors have an influence on parents’ procedural

fairness judgments. This study could also be longitudinal and follow parents’ a year after

settlement to assess the incidence of repeat litigation and assess the factors that are most related

to repeat litigation.

Quantitative analysis o f gender bias in the system.

Some respondents who participated in this study suggested that there might be a gender

bias in the system toward the mother for residential custody. Quantitative analysis could also

shed light on whether most parents perceive a gender bias toward the mother for residential

custody even though the laws are technically gender neutral? It could also examine whether

parents perceive that they are being pushed toward resolving their custody conflict on the terms

of joint legal custody, even among cases where such decision making process is not viable?

Reducing time/costAeverage.

Data from this study suggests that for many parent-litigants, child custody litigation takes

too long and costs too much. It further suggests that the issue of child custody might be used to


leverage other facts of the matrimonial case. Many respondents in the judge/law secretary group

and some in the attorney group suggested that early mediation may assist in enhancing

participation for parents, resolving a substantial number of contested child custody matters and

reducing unnecessary motion practice. Some judges/law secretaries and attorneys also suggest

that bifurcation of child custody matters of matters that do not resolve may potentially expedite

global resolution of the matrimonial case, and protect children from being used as leverage for

other components of the case.

A pilot study could be developed to process child custody conflicts which incorporates

elements of early mediation, and diversion to a bifurcated early hearing of child custody for cases

that don’t resolve in mediation. Research the implementation of such pilot should examine and

contrast the following items: 1. Time that it takes to resolve open child custody conflicts in a

traditional adversarial procedure vs. the pilot, 2. Time that frame to a global resolution of the

matrimonial matter in a traditional adversarial procedure vs. the pilot; 3. Evaluate and contrast

the extent to which the issue of child custody is being used as leverage for other components of

the case in a traditional adversary system vs. the pilot, 4. Evaluate and contrast the legal and

expert fees associated with the court procedures in a traditional adversary system vs. the pilot; 5.

Evaluate the impact of the pilot on court calendars (does the pilot expedite a resolution to

matrimonial matters compared with cases in a traditional adversary system, thereby reducing the

burden on court calendars, or not?).


Implications for other court contexts

The need for procedural justice has been widely documented in an array of formal court

settings (Brentano, 2001; Kitzman & Emery, 1993; Podkopacz, Eckberg & Zehm, 2004;

Rottman, 2005; Tyler, 2008; Porter, 2011; Frazer, 2006). The high cost of litigation and delay,

desire to be included and respected, and desire for neutral and even handed treatment, are likely

not exclusive to litigants who settle their child custody conflicts during civil matrimonial

litigation pre-trial, but are likely desired by litigants involved in other courts and court contexts

such as criminal courts, family courts and federal courts, etc. Therefore, future research should

examine access to justice issues among individuals who resolve their conflicts pre-trial, which go

beyond child custody conflicts during matrimonial litigation, in different courts and court

contexts. Do those who settle in other courts and court contexts feel that they have access to

justice? Do time and cost erode litigants’ fair process judgments in other courts and court

contexts among those who settle pre-trial? Is the treatment people encounter in other court

contexts including participation, respect, neutrality and trust, also relevant to fair process

judgments among settlers in other courts and court contexts? Are there other factors that

influence people’s fair process judgments in other courts and court contexts, or are the themes

redundant? Future research could, therefore, shed light on whether the findings of the current

study have implications beyond child custody litigation, - for the American justice system

generally.

Repeat litigation.

Data from this study suggests that when some parents are unduly pressured to settle child


custody disputes that they may be more likely to return to court and re-litigate the issue. This data

lends support to Brentano (2001) who indicated that in a follow up to her study 64% of the

original custody matters that settled returned to court for further litigation, and that parents who

were dissatisfied with their initial court experience were more likely to repeat litigation. The

issue of repeat litigation of child custody matters must be explored in greater depth and detail.

Longitudinal research needs to be done to determine if this is true. Do processes occurring in

traditional adversarial child custody litigation foster repeat litigation, or not? If so, future

research could examine if parents are returning to court because they were not sufficiently heard

during the initial court appearance? Are parents returning to court because they are caving into

agreements that are simply not viable due to pressure placed upon them to exit the system, or due

to pressures placed upon them to accept a custody arrangements based upon the agenda of the

other legal actors involved in the custody case? Are parents returning to court because one (or

both) of the parents is acting in bad faith, abusive, or personality disordered? Is it a combination

of these issues, or is there more?

Research on how the attorney/client rapport effects voice opportunity.

Data from this study suggests that parents who were satisfied with their attorney and

those who were not satisfied with their attorney unanimously felt they did not have sufficient

opportunity to directly participate in the decision making process regarding custody of their

children. Thus, future research should consider the attorney/client rapport and assess the extent to

which litigant satisfaction with their attorney might influence parents experience of voice in the

decision making process, and satisfaction with the court procedure.


Research on how finances might bias a case toward one parent or the other.

Data from this study suggest that money may play a role providing an advantage to one

spouse over the other based on their ability to pay for protracted litigation. In the past, the

monied-spouse was able to leverage the system to his advantage by dragging the case out until

the non-monied spouse would “cave in” to his demands. In October 2011, new legislation was

implemented in an effort to discourage this providing temporary support and counsel fees to the

non-monied spouse (after an application to court is made and pending judicial determination).

Future research should examine whether the new legislation is effectively leveling the financial

playing field, and to what extent? What happens in cases where there is an off the books wage

earner, or when the tax returns on a corporation, or business do not reflect actual earnings? Also,

does the new legislation now provide an advantage to the non-monied spouse, as some suggest?

For example, in instances where the non-monied spouse obtains a substantial temporary support

award and legal fees, is she now provided with an advantage to keep the case going until the

monied spouse can no longer afford to pay both attorneys and caves into her demands? Whether

and how there is an advantage or bias toward the parent who can pay keep the litigation going

must be explored in order to fully understand the fairness of processes in a traditional adversary

system.

186

References

Adams, J.S. (1963). Towards an understanding of inequity. The Journal o f Abnormal and Social Psychology, 67 (5), 422.

American Bar Association (1994). Legal needs and civil justice: A survey of Americans. Major findings from the comprehensive legal needs study. Chicago: Author.

Ashford, J.B. & Holschuh, J. (2006). Fairness issues in law and mental health: Directions for future social work reserach. J. Soc. & Soc. Welfare, 33, 151.

Babb, B. (2008). Reevaluating Where We Stand: A Comprehensive Survey of America's Family Justice Systems, Family Court Review, 46, 230.

Babb, B. (1998). Fashioning an Interdisciplinary Framework for Court Reform in Family Law: A Blueprint to Construct a Unified Family Court, Southern California Law Review, 72,469.

Bauman, C.W. & Skitka, L.J. (2009). In the mind of the perceiver: Psychological implications of moral conviction. In D. Bartels, C.W. Bauman, L.J. Skitka, & D. Medin (Eds fMoral Judgment and Decision Making. Psychology of learning and motivation. Vol. 50, pp. 31- 364. San Diego, CA: Academic Press.

Barclay, S. (1999). Why People Appeal In Civil Cases. Northwestern University Press and the American Bar Foundation: Evanston, Illinois.

Barclay, S (1996).The decision to self-represent.” Social Science Quarterly, 77, 912-923.Berman, G. & Gold, E. (2012). How judges can improve the effectiveness of criminal courts. The

Judges Journal, 51(2), 20-22.Blader, S.L. (2006). What determines peoples fairness judgments? Identification and outcomes

influence procedural justice evaluations under uncertainty. Journal o f Experimental Social Psychology, 43, 986-994.

Blader, S.L. & ChenY.R. (2012). Differentiating the effects of status and power: A justice perspective. Journal o f Personality and Social Psychology, 102(5), 994-1014.

Blader, S.L. & Tyler, T.R. (2001). Identity and cooperative behavior in groups. Group Processes Intergroup Relations, 4 (3), 207-226.

Blader, S.L. & Tyler, T.R. (2003). The group engagement model: Procedural justice, socialidentity and cooperative behavior. Personality and Social Psychology Review, 1 (4), 349- 361.

Blader, S.L. & Tyler, T.R. (2004). Justice and negotiation. In M.J. Gelfand & J.M. Brett (Eds.) Handbook of negotiation and culture (pp.295-312). Stanford, CA: Stanford University Press.

Blader, S.L. & Tyler, T.R. (2009). Testing and extending the group engagement model: Linkages between social identity, procedural justice, economic outcomes and extrarole behavior. Journal o f applied psychology, 94(2), 445-464.

Blader, S.L. & Chen, Y.R. (2012). Differentiating the effects of status and power: A justice perspective. Journal of Personality and Social Psychology, 102 (5), 994-1014.

Brentano, C. (2001). Child custody litigation andfamily adjustment: the role o f procedural and distributive justice (Doctoral dissertation, University of California, Irvine).

187

Brockner, J., Ackerman, G., Greenberg, J., Gelfand, M., Francesco, A.M., Chen, Z.X., Leung, K., Bierbrauer, G., Gomez, C., Kirkman, B., & Shapiro, D. Culture and procedural justice: The influence of power distance on reactions to voice. Journal o f Experimental Social Psychology, 37, 300-315.

Brockner, J., & Wiesenfeld, B.M. (1996). An integrative framework for explaining reactions to decisions: The interactive effects of outcomes and procedures. Psychological Bulletin, 120, 189-208.

Burke, K., & Leben, S. (2007). Procedural fairness: A key ingredient in public satisfaction. A white paper of the American Judges Association the Voice of the Judiciary, www.aia.ncse.dni.uc/courtrv/cr44-1 /cr44-1 -2BurkeLeben.pdf

Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).Chesler, P. (1986). Mother’s on trial: The battle for children and custody. New York: McGraw-

Hill.Conferees, W. (2001). “High Conflict Custody Cases: Reforming the System for Children-

Conference Report and Action Plan. Fam. LQ, 34, 589-596.Cooter, R.D., Marks, S, Mnookin, R.H. (1982). Bargaining in the shadow of the law: A testable

model of strategic behavior. Journal o f Legal Studies, 11, 225-251.Cunningham, C.D. (1992). The lawyer as translator, representation as Text: towards an

ethnography of legal discourse, 77, Cornel law review (1367-1385).De Cremer, D., & Blader, S.L. (2006). Why do people care about procedural fairness? The

importance of belongingness in responding and attending to procedures. European Journal of Social Psychology, 36(2), 211-228.

De Cremer, D., & Tyler, T.R. (2005) The effects of trust in authority and procedural fairness on cooperation. Journal o f Applied Psychology, 92(3), 639-649.

De Cremer, D., & Van Vugt, M. (1999). Social identification effects in social dilemmas: A transformation of motives. European Journal o f Social Psychology, 29 (7)m 871-893.

Domestic Relations Law 237: Counsel fees and expenses.Edwards, H.T. (1998). Collegiality and decision making on the D.C. circuit. Virginia Law

Review, 84 (7), 1335.Ellis, W.L. (1991). The effects of background characteristics o f attorneys and judges on

decision-making in domestic relations court: An analysis o f child support awards. The Hawthorne Press.

Emery, R.E. (2011). Renegotiating Family relationships: Divorce, child custody, and mediation (2nd. Ed). New York: Guilford.

Emery, R.E. (1999). Changing the rules for determining child custody in divorce cases. Clinical Psychology, Science & Practice, 6, 323-327. Friedman, L.M. (1989). Litigation and society. Annual review of sociology, 17-29.

Emery, R. E., Laumann-Billings, L., Waldron, M. C., Sbarra, D. A., & Dillon, P. (2001). Child custody mediation and litigation: Custody, contact, and coparenting 12 years after initial dispute resolution. Journal of Consulting and Clinical Psychology, 69(2), 323-332. Retrieved from http://search.proquest.eom/docview/210635976?accountid-8204

http://www.aia.ncse.dni.uc/courtrv/cr44-1

http://search.proquest.eom/docview/210635976?accountid-8204

188

Emery, R.E., Sbarra, D., & Grover, T. (2005). Divorce mediation: Research nd Reflections. Family Court Review, 43 (I), 22-31.

Folger, R. (1977). Distributive and procedural justice: Combined impact of Voice andimprovement on experienced inequity. Journal o f personality and Social Psychology, 35, 108-119.

Fondacaro, M.R,; Brank, E.M., Stuart, J., Villanueva-Abraham, S., Luescher, J. and McNatt, P.S. (2006). Identity Orientation, voice, and judgments of procedural justice during late ddolescence. Faculty Publications, Department of Psychology. Paper 391.http://digitalcommons.uni.edu/psychfacpub/391

Friedman, L.M., & Percival, R.V. (1976). A tale of two courts: Litigation in Alameda and San Benito Counties. Law and Society Review, 10, 267-301.

Folger, R., Rosenfeld, D., Grove, J., & Corkran, L. (1979). Effects of “voice” and peer opinions on responses to inequity. Journal of Personality and Social Psychology, 37, 2243-2261.

Frazer, S.F. (2006). The impact of the community court model on defendant perceptions of fairness: A case study at the Red Hook Community Justice Center. Center for Court Innovation, NY,NY. www.courtinnovation.org/sites/default/files/procedural faimess .pdf

Galanter, M. (1986). Day after the litigation explosion, The. Md. L. Rev., 46(3).Galanter, M. & Cahill, M. (1994). “Most cases settle”: The judicial promotion and regulation of

settlements. Stanford Law Review, 46, 1339-1391.Gilgun, J.F. (1994). A case for case studies in social work research. Social Work, 39, 371-380.Glaberson, W. (2013, April 13). Justice Denied: Inside the Bronx’s Dysfunctional Court System.

Faltering Courts Mired in Delays. New York Times. Retrieved September 1, 2013 from http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-i n-delays. htm l?r=l& /

Greenberg, J. & Folger, R. (1983). Procedural justice, participation and the fair process effect in groups and organizations. In P.B. Paulus (Ed.) Basic group processes (pp. 235-256). New York: Springer-Verlag.

Grillo, T. (1991). The mediation alternative: Process dangers for women. The Yale Law Journal, 100, 1545-1610.

Gross, S.R. & Syverud, K.D. (1991). Getting to no: A study of settlement negotiations and the selection of cases for trial. Michigan Law Review, 90(2), 319-393.

Hauenstein, N.M.A., McGonigle, T., Flinder, S.W. (2001). A meta-analysis of the relationship between procedural justice and distributive justice: Implications for justice research. Employee Responsibilities and Rights Journal, 13 (1), 39-56.

Hensler, D.R. (1993). Studying gender bias in the courts: Stories and statistics. Stanford Law Review, 45 (6), 2187.

Hensler: The real world of tort litigation in everyday practices and trouble cases (156-163).Heuer, L. (2005). What’s just about the criminal justice system? A psychological perspective.

http://digitalcommons.uni.edu/psychfacpub/391

http://www.courtinnovation.org/sites/default/files/procedural

http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronx-court-system-mired-i

189

Journal of Law and Policy.Hollander-Blumhoff, R.E. (2011) The psychology of procedural ustice in the federal courts.

Hastings Law Journal, 63 (127). Washington University in St. Louis Legal Studies Research Paper No. 12-05-21 available at SSRN: http://ssm.com/abstract-2080894.

Hollander-Blumhoff, R.E. &Tyler, T.R. (2008). Procedural justice in negotiation: Procedural fairness, outcome acceptance, and integrative potential. Law and Social Inquiry, 33 (2), 473-500.

Hosticka, Carl (1979). We Don’t Care what happened, we only care about what is going to happen, Journal of Soc problems, 26, 599-605.

Houlden, P. (1980). Impact of procedural modification on evaluations of plea bargaining. Law and Society Review, 15 (2), 267-292.

Kelly, J.B. & Emery, R.E. (2003). Children’s Adjustment Following Divorce: Risk and resilience perspectives. Family Relations 52(4), 352-362.

Kitzman, K.M. & Emery, R.E. (1993). Procedural justice and parents’ satisfaction in a field study of child custody dispute resolution. Law and Human Behavior, 17(5), 553-567.

Korobkin, R. & Guthrie, C. (1994). Psychological barriers to litigation settlement: An experimental approach. Michigan Law Review, 93(1), 107-192.

Kritzer, H. (1986). Adjudication to settlement: Shading in the gray. Judicature, 70, 161.

Lansford, J. E. (2009). Parental divorce and children's adjustment Perspectives on Psychological Science, 4, 140-152.

Liljeberg v. Health Services Acquistion Coro., 486 U.S. 847 (1988). Certiorari To The United States Court of Appeals For the Fifth Circuit No. 86-957.

Lind, E.A., Kanfer, R., Early, P.C. (1990). Voice, control, and procedural justice: Instrumental and noninstrumental concerns in fairness judgments. Journal o f Personality and Social Psychology, Vol (5), 952-959.

Lind, E.A., Kulik, C.T., Ambrose, M., & de Vera Park, M.V. (1993). Individual and corporate dispute resolution: Using procedural fairness as a decision heuristic. Administrative Science Quarterly, 224-251.

Lind, E. A., and Lissak, R. I. (1985). Apparent impropriety and procedural fairness judgments. Journal of Experimental Social Psychology, 21, 19-29.

Lind, E.A., Lissak, R.I, & Conlon, D.E. (1983). Decision control and process control effects on procedural justice judgments. Journal of Applied Social Psychology, 13 (4), 338-350.

Lind, E.A., MacCoun, R.J., Ebener, P.E., Felitiner, W.L.F., Hansler, D.R., Resnik, J., & Tyler, T.R. (1989). The perception of justice: Tort litigants’ views of trials, court-annexed arbitration, and judicial settlement conferences. Santa Monica, CA: RAND Corporation.

Lind, E.A., MacCoun, R.J., Ebener, P.A., Felstiner, W.L.F., Hensler, D.R., Resnik, J., & Tyler, T.R. (1990). In the eye of the beholder: Tort litigants’ evaluations of their experiences in the civil justice system. Law and Society Review, 953-996.

Lind, E.A. & Tyler, T.R. (1988). The social psychology ofprocedural justice. Plenum Publishing

http://ssm.com/abstract-2080894

190

Corporation.Maacoby, E.E. & Mnookin, R.H. (1992). Diving The Child: Social and legal dilemmas in

custody. Cambridge, Ma: Harvard University Press.MacCoun, R.J. (2005). Vice, Control and Belonging: The Double-edged sword of procedural

fairness. Anjual Review of the Law and Social Science, 1, 171-173.MacCoun, R.J., Lind, A.E., Hensler, D.R., Bryant, D.L. Ebener, P.A. (1988). Alternative

adjudication. Rand Corporation: Santa Monica, CA. www.rand.org/content/dam/rand/pubs/reports/2007/R3676.pdf

MacCoun, R.J. & Tyler, T.R. (1988). The basis of citizens perceptions of the criminal jury:Procedural fairness, accuracy and efficiency. Law and human behavior 12 (3), 333-352.

Madden, R.G. & Wayne, R.H. (2003). Social work and the law: A therapeutic jurisprudence perspective. Social Work, 48(3), 338-347.

Maeder, E.M. & Wiener, R.L. (2008). Likelihood of using drug courts: Predications usingprocedural justice and planned behavior. Behavioral Sciences and The Law, 26 (5), 543- 553.

Matrimonial Commission Report to the chief judge of the state of New York (2006). Hon. Sondra Miller, Chairperson, Associate Justice, Appellate Division - 2nd Department, http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf.

McGhie Land Title Co., 549 F.2d 1358,1361 (1 Oth Cir. 1977)Miller v Pipia, 297 AD2d [2002],Mnookin, R.H. & Komhauser, L. (1979). Bargaining in the shadow of the law: The case of

divorce. The Yale Law Journal, 88(5), 950-997.Murphy, K. & Tyler, T.R. (2008). Procedural justice and compliance behavior: the mediating role

of emotions. European Journal of Social Psycnology, 38 (4), 652-668.Nicholas T. v Christine T. NY Slip Op 06229 [42 AD3d 526] [2007] Appellate Division, Second

Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 12, 2007.

National Association of Social Workers (2008). Code of Ethics approved by the 1996 NASW delegate assembyl and revised by the 2008 NASW delegate assembly, www.socialworkers.org/pubs/code/code/.asp

Neuman v Neuman, 19 AD3d [2005],O’Barr, W.M. & Conley, J.M. (1990). Litigant Satisfaction vs Legal Adequacy in small claims

court narratives, in Language in the Judicial Process, 97-131, (J.N. Levi & A. Graffam Walker eds.)

Ostrom, B. & Kauder, N. (1996). Examining the work of state courts: A national perspectivefrom the court statistics Project 39. Bureau of Justice Statistics Washington DC, National Center for State Courts, Williamsburg VA, State Justice Institute, Alexandria VA, https//www.ncj rs .go v/pdffiles 1/Digization/160762NC JRS .pdf

Papachristos, T.M. & Fagan, J. (2007). Attention felons: Evaluating project safe neighborhoods in Chicago. Journal of Empirical Legal Studies, 4, 223.

Pearson, J. (1999). Court services: Meeting the needs of twenty-first century families. Family Law Quarterly, 33 (3), 617-635.

http://www.rand.org/content/dam/rand/pubs/reports/2007/R3676.pdf

http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf

http://www.socialworkers.org/pubs/code/code/.asp

http://www.ncj

191

Pearson, J. & Ring, M.A. (1982). Judicial decision-making in contested custody cases. Journal of Family Law, 21, 703-724.

Petrucci, C.J., Winick, B.J., & Wexler, D.B. (2003) Therapeutic jurisprudence: An invitation to social scientists. Handbook of Psychology in Legal Contexts, 579.

Pinello, D. (1999). Linking Party to Judicial Ideology in American Courts: A metaanalysis. The Justice System Journal, 3, 219-254.

Podkopacz, M.R., Eckberg, D.A. & Zehm, K. (2004). Drug court defendant experience and fairness study. Unpublished manuscript. Available at:http://www. mncourts.gOv/Documents/4/Public/Research/Drug_Court_FairnessReport (2 004). pdf.

Polikoff, N.D. (1982). Why are mothers losing: A brief analysis of criteria used in child custody determination, Women’s Rights Law Reporter, 7, 235-243.

Porter, R. (2011) Center for court innovation, procedural fairness in California: Initiatives, challenges and recommendations. Available at:HttpJfwww.courtinnovation.org/sites/default/files/documents/Procedural_Fairness_CA.pdf.

Pruitt, D.G., Pierce, R.S., McGillicuddy, N.B., Welton, G.L., & Castrianno, L.M. (1993). Longterm success in mediation. Law and Human Behavior 17(3), 313-330.

Pryor, J. & Rodgers, B. (2001). Children in changing families: life after parental separation. Oxford: Blackwell.

Rankin, L.E. & Tyler, T.R. (2009). Justice and cooperation. Netherlands Journal o f Psychology, 65 (4), 146-154.

Resnik, J. (1986). Failing faith: Adjudicatory procedure in decline. The University of Chicago Law Review, 53 (2), 494-560.

Resnik, J. (1991). From “Cases” to “Litigation”. Law and Contemporary Problems, 54 (3), 5-68.Rossman, S.B., Roman, J, Zweig, J.M., Rempel, M., & Lindquist, C. (2011). The multi-site adult

drug court evaluation: The drug court experience. The Urban Institute, 2012. Available at http://www.urban.org

Rottman, D.B. (2005). Trust and Confidence in the California Courts: A survey of the public and attorneys. Commissioned by the Administrative Office of the Courts on behalf of the Judicial Counsel of California. Available at: http: //www. court info. ca. gov/reference/4_3 7pubtrust. htm

Settle, S. & Lowery, C. (1982). Child custody decisions: Content analysis of a judicial survey. Journal of Divorce, (6) 125-138.

Schulhofer, S.J., Tyler, T. R., & Huq, A.Z. (201 l).American policing at a crossroads:Unsustainable policies and the procedural justice alternative. The Journal of Criminal Law and Criminology, 101 (2), 335.

Shapiro, D.L. & Brett, J.M. (1993). Comparting three processes underlying judgments ofprocedural justice: A field study of mediation and arbitration. Journal o f Personality and Social Psychology, 65(6), 1167-1177.

Shestowsky, D. (2004). Procedural preferences in alternative dispute resolution: A closer, modem look at an old idea. American Psychological Association Psychology, Public Policy and Law, 10, 211.

http://www

http://www.courtinnovation.org/sites/default/files/documents/Procedural_Fairness_CA.pdf

http://www.urban.org

192

Shaw, L. (2010). Divorce mediation outcome research: A meta analysis. Conflict Resolution Quarterly, 27 (4), 447-467.

Smith, H. J., Tyler, T. R., Huo, Y. J., Ortiz, D. J., & Lind, E. A. (1998). The self-relevantimplications of the group-value model: Group membership, self-worth, and treatment quality. Journal of Experimental Social Psychology, 34(5), 470-493.

Stake, R.E. (2005). Qualitative case studies. InN. K. Denzin & Y.S. Lincoln (Eds.), The Sage handbook o f qualitative research (3rd ed., pp. 443-466).

Stake, R.E. (1995) The art o f case study research. Thousand Oaks, CA: Sage.Stemlight, J.R. (1999). Lawyers’ representation of clients in mediation: Using economics and

psychology to structure advocacy in a non adversarial setting. Journal on Dispute Resolution (14) 343-344.

Sunshine, J. & Tyler, T.R. (2003). The role of procedural justice and legitimacy in shaping public support for policing. Law & Society Review, 37, 513-517.

Syrett, K. (201 l).Health technology appraisal and the courts: accountability for reasonableness and the judicial model of procedural justice. Health, Economics, Policy and Law, 6 (4), 469-488.

Thaibaut, J. & Walker, L. (1975). Procedural Justice: a Psychological Analysis. New Jersey: Erlbaum.

Thibaut, J. & Walker, L.W. (1978). A theory of procedure. California Law Review, 66, 541-566.Tippins, T.M, & Wittmann, J.P. (2005). Empirical and ethical problems with custody

recommendations: A call for clinical humility and judicial vigilance. Family Court Review, 43 (2), 193-222.

Trochim, W. (1989). Outcome pattern matching and program theory. Evaluation and Program Planning, 12, 355-366.

Tor, A., Gazal-Ayal, O. & Garcia, S.M. (2010). Fairness and the willingness to accept plea bargain offers. Journal of Empirical Legal Studies, 7(1), 97-116

Trubek, D.M., Grossman, L.B., Felstiner, W.L.F., Kritzer, H.M., Sarat, A, (1983). CivilLitigation Research Project-Final Report-Summary of Principal Findings. Civil Litigation Research Project, University of Wisconsin Law School.

Tyler, T.R. (1989). The psychology of procedural justice: A test of the group-value model. Journal o f personality and Social Psychology, 57 (5), 830-888.

Tyler, T.R. (1990). Why people obey the law. New Haven, CT: Yale University Press.Tyler, T.R. (1994). Psychological models of the justice motive: Antecedents of distributive and

procedural justice. Journal of personality and social psychology, 67(5), 850.Tyler, T.R. (1997). Procedural fairness and compliance with the law. Swiss Journal o f Economics

and Statistics, 133 (2), 219-240.Tyler, T.R. (2000) Social justice: Outcome and Procedure. International Journal o f Psychology,

35(2), 117-125.Tyler, T.R. (2001). Public trust and confidence in legal authorities: What do majority and

minority group members want from the law and legal institutions? Behavioral Sciences & the Law, 19(2), 215-235.

Tyler, T.R. (2006) Why people Obey the Law. Princeton, NJ: Princeton University Press.

193

Tyler, T.R. (2006). Psychological perspectives on legitimacy and legitimation. Annual Review of Psychology, 57, 375-400.

Tyler, T.R. (2008). Procedural justice and the courts. Court Review, 44, 26-31.Tyler, T.R. (2012). Justice and effective cooperation. Soc Justice Research, 25, 355-375.Tyler, T.R., Beckman, R.J., Smith, H.J. & Huo, Y.J. (1997). Social Justice in a Diverse Society.

Westview Press.Tyler, T.R. & Blader, S.L. (2000). Cooperation in groups: Procedural justice, social identity and

behavioral engagement. Philadelphia, PA: Psychology Press.Tyler, T.R. & Blader, S.L. (2003). A four component model of procedural justice: Defining the

meaning of a “fair” process. Personality and Social Psychology, 29, 747-758.Tyler, T.R. & Blader, S.L. (2009). Testing and extending the group engagement model: Linkages

between social identity, procedural justice, economic outcomes and extrarole behavior. Journal of Applied Psychology, 94(2), 445-464.

Tyler, T.R., and Degoey, P. (1995). Collective restraint in a social dilemma situation: Theinfluence of procedural justice and community identification on the empowerment and legitimacy of authority. Journal o f Personality and Social Psychology, 69, 482-497.

Tyler, T.R., Degoey, P., and Smith, H. (1996). Understanding why the justice of groupprocedures matters: A test of the psychological dynamics of the group-value model. Journal of Personality and Social Psychology, 70, 913-930.

Tyler, T.R. & Folger, R. (1980). Distributional and procedural aspects of satisfaction with citizen-police encounters. Basic and Applied Social Psychology 1 (4), 281-292.

Tyler, T.R. & Huo, Y.J. (2002). Trust in the law: Encouraging public cooperation with the police and the courts. New York: Russell Sage.

Tyler, T. R., and Lind, E. A. (1991). Procedural processes and legal institutions. In H. Steems and R. Vermunt (Eds.), Social justice in human relations (Vol.2): Societal and psychological consequences o f justice and injustice. New York: Plenum.

Tyler, T.R., Rasinski, K. & Spodick, N. (1985). The influence of voice on satisfaction with leaders: Exploring the meaning of process control. Journal o f Personality and Social Psychology, 48, 72-81.

U.S.C. § 455 : US Code - Section 455: Disqualification of justice, judge, or magistrate judge.Van den Bos, K. (1999) What are we talking about when we talk about no-voice procedures? On

the psychology of the fair outcome effect. Journal o f Experimental Social Psychology, 35 (6), 56-577.

Van den Bos, K., Lind, E.A., Vermunt, R., & Wilke, H.A. (1997). How do I judge my outcome when I do not know the outcome of others? The psychology of the fair process effect. Journal of Personality and Social Psychology, 72(5), 1034-1046.

van der Toom, J., Tyler, T.R., Jost, J.T. (2011). More than fair: Outcome dependence, system justification, and the perceived legitimacy of authority figures. Journal o f Experimental Social Psychology, 47 (1), 127-138.

194

Van Prooijen, J.-W., Van den Bos, K., Lind, E. A., & Wilke, H. A. M. (2006). How do people react to negative procedures? On the moderating role of authority’s biased attitudes. Journal of Experimental Social Psychology, 42, 632-645.

van Prooijen, J. W., vanden Bos, K, Wilke, H.A. (2007). Procedural justice in authorityrelations: the strength of outcome dependence influences people's reactions to voice. European Journal of Social Psychology, 37 (6), 1286-1297.

Van Vugt, M., & De Cremer, D. (2002). Leadership in social dilemmas: Comparing theinstrumental and relational perspectives. In: M. Hewstone & W. Stroebe (Eds.), European Review of Social Psychology, Vol. 13 (pp. 155-184). Philadelphia: Psychology Press

Walker, L., LaTour, Lind, A.E., & Thaibaut, J. (1974). Reactions of participants and observers to modes of adjudication. Journal of Applied Social Psychology, 4(4), 295-310.

Walker, L., Lind, A.E., & Thibaut, J. (1979). The relation between procedural and distributive justice. Virginia Law Review, 65 (8).

Wallerstein, J.S., & Kelly, J.B. (2008). Surviving the Breakup: How children and Families Cope With Divorce. Basic Books.

Weinberg, D.C. (1999). The effect of personality upon judicial attitudes and decision making in contested custody cases. The Fielding Inst, US, Dissertation.

Welsh, N.A. (2001). Making deals in court-connected mediation: What’s justice got to do with it? Washington University Law Quarterly, 79, 787.

Welsh, N.A. (2004). Perceptions of fairness in negotiation. Marquette Law Review, 87, 753-767.Wenzel, M. (2002). What is social about justice? Inclusive identity and group values as the basis

of the justice motive. Journal o f Experimental Social Psychology, 38, 205-218.Wenzel, M., Tyler, Okimoto, T.G., Feather, N.T., & Platow, M.J. (2008). Retributive and

restorative justice. Law and Human behavior, 32, 375-389.Wexler, D.B. (1990). Therapeutic jurisprudence: The law as a therapeutic Agent. Carolina

Academic Press: Durham, NC.Winick, B.J. & Wexler, D.B. (2003). Judging in a therapeutic key: Therapeutic jurisprudence

and the courts. Carolina Academic Pr.Winnick, B.J. & Wexler, D.B. (2003). Putting therapeutic jurisprudence to work. ABAJ, 89, 54.Young v Young, 212 A.D.2d 114 [1995].Yin, R.K. (2009). Case study research: design and methods, - 4th ed. (Applied social research

methods v.5). Sage Publications Inc., Ca.Zimerman, N. & Tyler, T.R. (2010). Between access to counsel and access to justice: A

psychological perspective. Fordham Urban Law Journal, 37, 473-507.

Adelphi University Informed Consent

IRB Protocol Title: Evaluating procedural justice criteria for parents who settlechild custody matters pre-trial: A case study.

Principal Investigator: Lisa K. Askinazi, LCSW

Research PurposeI understand that this research seeks to learn about the extent to which a traditional legal setting provides a fair dispute resolution venue for parent-litigants who settle their child custody disputes pre-trial.

Description of the ResearchI understand that I will be participating in a 30 to 45 minute interview to offer my feedback, observations and opinions about the extent to which litigant-parents have access to a fair procedures in a system that typically results in settlement.

Potential RisksI understand that there is minimal risk involved in my participation in this study, as it will examine various components of legal processes occurring in a court setting which pertains to my area of employment.

Potential BenefitsI understand that the study findings might benefit the court/legal system and their ability to improve services to the public.

Costs/CompensationI understand that there will be no compensation for participation in the study.

Contact PersonsI understand that if I have any questions, at any time, about this research, or want to discuss any possible study-related injuries, that I may contact Lisa Askinazi at (516) 596-7960, or Dr. Elizabeth Palley at (516) 877-4441.

ConfidentialityI understand that my identity as a participant in this research will be kept completely confidential in any publication o f the results. I understand that all confidential study materials including records, notes/transcripts, and tape recordings will be stored in a locked file cabinet located in the private office o f the Primary Investigator, and will be destroyed 3 years after the completion of the study. I understand that the information obtained during this research (research records, tape recordings, notes) will be kept confidential to the extent permitted by law and will not reveal the my name , nor will it reveal identifying information. I understand that the research record, however, may be reviewed by government agencies (such as the Department o f Health and Human Services), the agency sponsoring this research, individuals who are authorized to monitor or audit the research, or the Institutional Review Board (the committee that oversees all research in human subjects at Adelphi University) if required by applicable laws or regulations. I understand that the material will be maintained for up to 3 years.

Voluntary ParticipationI understand that participation in this study is voluntary. I understand that I may cease participation in the interview at any point in time. I understand that I may refrain from answering questions that I am not comfortable with. I understand that any new information that develops during this study, that might affect my decision to participate, will be given to me immediately.

I understand that a signed copy o f this consent form will be given to me.

Institutional Review Board ApprovalI understand that this research has been reviewed and approved by the Adelphi University Institutional Review Board. I understand that if I have any questions, concerns or comments, that I may contactDr. Carolyn Springer, Chair of the Adelphi University IRB, 516- 877-4753; [email protected].

CONSENT TO PARTICIPATE:

Person Obtaining Consent

Print Name________________________ Signature___________________Date__________

Study Participant


CONSENT TO AUDIO TAPE INTERVIEW:

I consent to have the interview audio tape recorded.



Study Participant

Print Name Signature Date

mailto:[email protected]

Adelphi University Informed Consent

IRB Protocol Title: Evaluating procedural justice criteria for parents who settlechild custody matters pre-trial: A Case Study.

Principal Investigator: Lisa K. Askinazi, LCSW

Research PurposeI understand that this research seeks to learn about the extent to which parents who settle child custody and visitation disputes before going to trial, perceive that their experiences with the legal system are fair.

Description of the ResearchI understand that I will be participating in a 30 to 45 minute interview to provide my feedback, observations and opinions about my experience o f fairness in a legal setting.

Potential RisksI understand that of the interview questions might evoke emotional distress if I had a negative court encounter. I understand that the Primary Investigator is a Licensed, Certified Social Worker, who will provide support in the event that I experience distress during the interview. I understand that I may cease participating in the interview at any time, and may refrain from answering any questions that I am not comfortable with.

Potential BenefitsI understand that the study findings might benefit the courts/legal system and their ability to improve services to the public.

Costs/CompensationI understand that there will be no compensation for participation in the study.

Contact PersonsI understand that if I have any questions, at any time, about this research, or want to discuss any possible study-related injuries, that I may contact the Primary Investigator, Lisa Askinazi, at (516) 596-7960, or Dr. Elizabeth Palley, at (516) 877-4441.

ConfidentialityI understand that my identity as a participant in this research study will be kept completely confidential in any publication o f the results o f this study. I understand that all confidential study materials including records, notes/transcripts, and tape recordings will be stored in a locked file cabinet located in the private office of the Primary Investigator, and will be destroyed 3 years after the completion o f the study. I understand that the information obtained during this research (research records, tape recordings, notes) will be kept confidential to the extent permitted by law and will not reveal the participant’s name, or provide any identifying information. I understand that the research record, however, may be reviewed by government agencies (such as the Department o f Health and Human Services), the agency sponsoring this research, individuals who are authorized to monitor or audit the research, or the Institutional Review Board (the committee

that oversees all research in human subjects at Adelphi University) if required by applicable laws or regulations. I understand that the material will be maintained for up to 3 years.

Voluntary ParticipationI understand that participation in this study is voluntary. I understand that I may cease participation in the interview at any point in time. I may refrain from answering questions that I am not comfortable with. I understand that any new information that develops during this study, which might affect my decision to participate, will be immediately provided to me.I understand that a signed copy o f this consent form will be given to me.

Institutional Review Board ApprovalI understand that this research has been reviewed and approved by the Adelphi University Institutional Review Board. If I have any questions, concerns or comments, I can contact Dr. Carolyn Springer, Chair of the Adelphi University IRB; 516-877-4753 £[email protected].

Consent


Print Name_____________________Signature_________________ Date________

Study Participant

Print Name________________________Signature___________________ Date

Consent to audio tape the interview

I consent to have the interview audio tape recorded.


Print Name________________________Signature___________________ Date

Study Participant

Print Name Signature Date

mailto:[email protected]

February 22, 2011

Dear_________ ,

In order to complete my doctoral dissertation, I am conducting a study to examine the extent to which litigant-parents have access to justice (a fair legal procedure) when child custody and visitation disputes resolve pre-trial. As a part of this study, I am inviting you to participate in a brief interview to learn about what components of procedure enhance or impinge upon parental access to a fair legal procedure. The personal identity of all study participants will remain completely confidential.

If you interested in participating, please complete and return the enclosed postage paid post card, or email me at [email protected] .com with your contact information so we can arrange a date for the interview.

The study findings will be shared with the court and it is my hope that they will be used to help the court system operate more fairly.

Thank you for your consideration of participating in this study.

Sincerely,

Lisa K. Askinazi, LCSWR Doctoral Candidate