4. Child custody disputes in Finnish District Courts (research summary, 2006)

SUMMARY CHILD CUSTODY DISPUTES IN FINNISH DISTRICT COURTS
Elisa Valkama & Marjukka Litmala
National Research Institute of Legal Policy Helsinki 2006 - Publication no. 224


1 The purpose of the study and research material

The Child Custody and Right of Access Act (361/1983) has been in force since 1984. Child custody is intended to secure a child’s balanced development and wellbeing according to the child’s needs and wishes. The child’s custody should secure positive and close human relations above all between the child and its parents. Furthermore, the child should be secured good care and upbringing, as well as supervision and care that is in line with the age and level of development of the child. The right of access, on its part, is intended to secure a child’s right to be in contact with and meet the parent, with whom the child does not live.

The question of a child’s residence and right of access most frequently arise when a family splits up or when the parents have not been living together in the first place. A divorce does not, for example, automatically imply an end to the parents’ rights and obligations to act as the child’s custodians. If no specific agreement or decision has been made about the child’s residence and contacts, the care of the child and contacts with it, continue as before in the form of joint legal custody. However, in such instances efforts are often made to settle the question of custody, either through an agreement between the parents, confirmed by the municipal social welfare authorities or through a decision by a court. In a custody agreement it may be decided that 1) the parents have joint legal custody, that 2) the child will reside with one of the parents if the parents do not live together, that 3) only one of the parents acts as custodian (=single custody), and that 4) the child has a right of access to the parent with whom it does not live, as this has been agreed by the parents.

If the parents disagree about the child’s custody and right of access the matter is by means of an application solved by a District Court.[1] A District Court can also take a decision about the custody of a child, residence and the right of access as a matter adjoining a divorce case. A matter concerning custody can also be raised in a court associated with a claim concerning changes in the child’s maintenance.

In cases where child custody is disputed, it is up to the court to obtain any information required to decide on the matter. This means, in other words, all the information that is required in order to determine what is in the best interest of the child. According to the act, the court may in support of its decision obtain a report on the conditions of the child, that is, a child welfare report, from the municipal social welfare board. However, the act does not require such a report if it is obvious that it is not necessary for deciding the case.

Due to the increasing number of children born in cohabiting relationships and also the growing frequency of divorces in families with children, the total yearly number of cases involving child custody, residence and right of access has been in constant increase. The number has more than tripled since somewhat more than 15 years back. A major part of cases involving child custody, residence and the right of access are settled with the assistance of the municipal social welfare authorities. Courts handle only a minor part of cases involving child custody. Empirical surveys do, however, indicate that there has been an increase in the number of custody disputes during the past years.

This research focuses on disputes about custody. Its purpose is to investigate the frequency of custody disputes as well as their generality. Focus is in this research also placed on the content of the presented claims, the outcome of the cases and also their possible renewals (spiral of custody disputes). Focus is further placed on the forms of custody and the distribution of co-resident parents in cases handled by the courts. This research equally pictures the legal proceedings and their duration, and also the role played by social welfare authorities in the proceedings. In addition, the research material provides general information about of the parties: age and gender distribution, family relations, children and socio-economic status.

The research is to its nature empirical and it is based on extensive quantitative data. The research material is made up of District Court cases, both petitionary matters and also questions of child custody associated with a divorce, involving custody, residence and right of access (n=529). Material was gathered from all District Courts in Finland at the turn of 2005−2006.

The District Courts were requested to send the research institute a copy of all documents relating to decisions taken by the court on child custody during the indicated period.

2 Summary of the research findings

The number and generality of custody disputes. Close to 70 per cent of the court cases involving questions of custody and right of access as the main issue, were to their nature proper disputes. Disputes were more frequent in instances involving changes in the right of access as well as changes in the custody arrangement. In initial decisions concerning custody, the share of disputed cases was just over half the cases.

Altogether one third of the court cases relating to custody and right of access, which were dealt with as the main case, can be classified as undisputed. Roughly half the undisputed cases clearly lacked an element of dispute, whereas the other rough half were so called default judgments, because the respondent had not given a response by the closing date.

In divorce cases where adjacent claims were made concerning the child, a major part of them was undisputed (78 %). In merely every fifth case did the parents disagree in matters concerning the child, eventuating therefore in a dispute.

As indicated above, the share of disputed cases addressing child custody and the right of access as the main claims, out of all cases handled by District Courts, represented some 70 per cent, whereas somewhat more than 20 per cent of the cases involved claims concerning a child raised in a divorce case.

These research findings allow for more specific quantitative calculations about the yearly amount of disputed cases handled by Finnish District Courts.

During past years, the total amount of petitionary matters addressing exclusively child custody and the right of access has averaged 1,900–2,000 cases a year. This means that on a yearly basis some 1,500 cases have been disputed, out of all legal proceedings addressing exclusively child custody and the right of access. When assessing the generality of disputes concerning custody, account should also be taken of those cases where child custody is dealt with as part of a divorce case. On a yearly basis, there has been just short of 3,000 divorce cases involving additional claims about custody, although, in 2005, there were only 1,955 cases. It is thus possible to estimate that during past years, some 390 divorce cases have, in addition, had disputed claims about child custody or the right of access attached to them.

The total amount of disputes concerning child custody dealt with by District Courts can thus be estimated to some 2,000 cases a year. Among them, a major part (80 %) is handled as so called petitionary matters whereas some 20 per cent are claims associated with divorce cases. The relative share of custody disputes is thus 4−5 per cent out of all matters concerning child custody, residence or right of access handled either by the social welfare authorities or courts.

The status of the applicant and claims of the parties. The empirical part of the research focussed solely on disputes about custody, that is, cases where the parents disagreed about how to arrange residence and the right of access. The research material contained a total of 270 such cases. In a major part of the cases (67 %) the parents had agreed about the child’s custody and the right of access already before the legal proceedings.

This had normally been done through a decision by the court or an agreement confirmed by the municipal social welfare board. Somewhat more than half the custody disputes had been initiated by the mother, both those that were initiated for the first time and also cases aimed at changing an existing arrangement. Accordingly, the fathers’ activity in matters pertaining to custody and the right of access is significant: the child’s father had initiated legal proceedings in close to half the disputed cases. The most general constellation in the custody disputes seen in this research material was a co-resident mother and a non-resident father (75 %).

An analysis of the claims presented by the applicant revealed that the clearly most common claim concerned the form of child custody (70 %).

Among these claims sole legal custody had been demanded in seven cases out of ten, whereas in one third of the cases the applicant had presented claims for joint legal custody by both parents.

The second most common claim presented in the applications concerned the child’s residence. In six cases out of ten the claim concerned a decision about the child’s residence or a change in a previous decision about it. In claims concerning the child’s residence, 60 per cent of them represented claims that the child be designated to the mother and in four cases out of ten it was confirmed that the father’s place be the child’s residence.

Out of all custody disputes covered by the material, claims about the right of access were presented in some four cases out of ten. Among these claims, a confirmation of the right of access was presented in more than half the cases, whereas every fifth case concerned an extension of the right of access and every tenth case a limitation of this right. In about one fifth (18 %) of the claims concerning the right of access, a request had been made that the contacts should take place under supervision.

The progression of custody disputes and the duration of legal proceedings. When dealing with child custody and parenting schedules, the court is required to obtain all necessary documentation for taking the decision. A report from the municipal social welfare board about the family’s situation is one means of obtaining additional information. In this research material the court had decided to obtain such information in more than half the disputes (55 %).

According to this research material the court had more frequently decided to obtain a report in situations where the parents had had previous court disputes concerning the child. Reports were further ordinarily obtained in situations where the dispute concerned the form of child custody and residence. A report about the family’s situation was almost without exception obtained in cases where interventions had been made for child welfare purposes or the child’s parents suffered from drug or mental problems.

One purpose of this study was also to investigate the total duration of legal proceedings in custody disputes: that is, the time span between the filing of an application and the final decision delivered by the court in the case. According to this research material the total time span of custody disputes in District Courts averaged eight months. Out of all custody disputes about one forth where solved in less than four months whereas in close to half the cases the legal proceedings exceeded nine months.

The court’s decision about child custody and the right of access. In light of the present research material a custody dispute was solved through an agreement between the parents in close to half the cases (49 %). In each fourth case the court ruled in favour of the applicant and in 13 per cent of the cases the claim was dismissed. The case was dropped or dismissed without consideration in every tenth case.

When examining the content of the courts’ final decisions it was revealed that out of all custody disputes, in close to half of them (48 %) the court had delivered a decision about joint legal custody of the child. In close to 10 per cent of the cases a decision had further been made about a so-called limited joint legal custody, whereby specifications were made as to the division of tasks. The custody of the child had been assigned solely to the mother in one third of the cases and solely to the father in every tenth case.

As to the child’s residence, the court had in a major part of the custody disputes (65 %) decided that the child should live with its mother. In every third case it was decided that the child should live with its father. In the rest of the cases it was ruled that the child would alternate between both parents on a weekly basis or the children’s residence was split so that part of them would live with their mother and part of them with their father.

In altogether seven cases out of ten the court had given a decision about the right of access. Weekend meetings, which have been an established practice, were decided upon merely in about four cases out of ten. In about half the cases the court had devised case-specific solutions for the right of access. Decisions about supervised contacts were fairly rare in the material (12 %).

In more than half of all custody disputes the court had, in addition to decisions about custody or the right of access, also decided on maintenance to be paid for the child. The amount to be paid as child maintenance was in the court decisions confirmed at an average of 125 euro a month for each child.

The final decisions of the courts concerning the forms of child custody, residence or right of access, have also been analysed in light of the reports made by social welfare authorities. This analysis revealed that in close to nine cases out of ten the court’s decision was the same or partly the same as the solution suggested by the social welfare authorities. According to the research material, differences between the proposals and the decisions occurred particularly in disputes where the parties held an equally strong position as candidates for being the custodian.

Background information about the parties to custody disputes. In the research material 35−44 year olds constituted the largest age group among the parties to custody disputes. In about 40 per cent of the cases the applicants’ or the respondents’ family was made up of a single parent and children, whereas stepfamilies with two parents represented every fifth case.

Out of all children involved in the custody disputes, about one third of them were under 7 years of age, whereas 70 per cent were older than that. Only every tenth child was under 2 years of age and one fourth of the children 3−6 years old. A good third of the children belonged to the age group 7−12 and equally so every third was 13–17 years of age.

When addressing the socio-economic status of the parents and their present activities it could be seen that persons with a fairly low education, as well as persons active in working life, made up the major part of the cases. Based on a socio-economic professional classification, a major part of the parents belonged to the workers’ category.

In this research also other specific questions pertaining to disputes about child custody were analysed, such as for example child welfare measures. An overall assessment of the research material indicated that child welfare measures appear, on average, to be more frequent in custody disputes than among the population as a whole. Out of all custody disputes, families that had been clients of child welfare authorities made up about one third.

3 Discussion

Disputes between parents concerning the form of child custody, residence and right of access are generally perceived as disputes that are difficult to solve. When the parents split up they should at least decide with whom the child will continue to live and how to arrange contacts between the child and the non-resident parent in the future.

A major part of the parents have an agreement about the child’s residence and right of access confirmed by the social welfare authorities, whereas only a small part of them end up having a dispute about the child in a District Court. The present research indicates that the yearly relative share of custody disputes is some 4−5 per cent out of all matters concerning child custody, residence or right of access that have been handled either by the social welfare authorities or a court. The yearly number of custody disputes handled by District Courts amounts to some 2,000.

All in all, it would appear that a major part of the decisions made concerning child custody, residence and the right of access are also functioning well in practice. This view is supported by the fairly small number of cases decided on by courts and also the equally small number of cases aimed at changing previous agreements and decisions. There has, however, been a constant yearly increase in the total number of matters involving child custody, residence and the right of access. The increase in the number of children born in cohabiting relationships and also the increasing frequency of divorce have had the effect that questions about a child’s residence and the right of access are increasingly raised.

The research also indicated that fathers appear to be taking an increasingly active part in decisions about the child. In this research we found that it was almost as frequently the child’s mother who had made an application to the District Court, as had the child’s farther done. Neither were the fathers’ positions in the courts’ final decisions as gloomy as was previously thought.

According to the research findings, the share of mothers as the co-resident parent is smaller in court decisions than is the case for agreements confirmed by the social welfare authorities. In this research material, the decision had in some six cases out of ten been that the child lives with its mother. It would thus appear that the fathers, also in light of legal praxis, have almost the same chances to realise parenthood on a basis equal to that of the mothers.

This material indicates that practices pertaining to the right of access would have become more flexible than before. Instead of the traditional model of ”every second weekend”, a case-specific consideration is increasing made concerning the right of access to the child.

As to the outcome of a custody dispute, an overall observation is that close to half the disputes are solved through an agreement between the parents instead of a judgment. The percentage share of mediations is fairly large considering the delicate and conflict-prone nature of such matters. It would appear that it is easier to achieve an agreement in cases where only one issue concerning the child is in dispute. It is also more probable to reach an agreement in cases where a decision about child custody and the right of access is taken for the first time.

Although a large part of custody disputes finally end up in an agreement in court, the total duration of legal proceedings is in many cases fairly long.

The duration of the legal proceedings averaged in this research material eight months. In principle, a decision concerning the child’s residence and the right of access should be made within a fairly short time span. A speedy procedure is also to be favoured to avoid that so-called established practices would influence the content of the decision. On the other hand, the duration of the proceedings must not be a worth in itself, as it is, after all, a question of delicate and complicated matters.

There have lately been discussions about the role of the social welfare authorities in custody disputes. Criticism has been voiced, among others, about the child welfare reports being biased, as well as the long duration of the investigations. In this research material the court had decided to obtain a child welfare report in somewhat more than half the custody disputes. The present material indicates that, all in all, requests for such reports from the social welfare board are less common than has previously been assumed. Furthermore, the research reveals that the court decisions in custody disputes still rely heavily on the investigations made by the social welfare authorities. In about nine cases out of ten the final decision of the court was the same or almost the same as the solution the social welfare board had proposed.

A specific question pertaining to child custody disputes is the so-called spiral of custody disputes or chronic custody disputes. In these cases there have already been several disputes concerning the child’s residence and right of access. This research reveals that instances in which a custody dispute easily drags on and becomes more complicated, are those where the parents have recently split up and where each parent claim sole custody of the child.

Also psychosocial problems are common in families that are involved in drawn-out custody disputes. Naturally, the child is the family member who is most severely affected by difficult custody disputes. It is vital to attend to the wellbeing of the child in the midst of a custody dispute. Children who have become the target of many difficult custody disputes are often in need of special assistance.

Notes:
[1] The concept of custody dispute is in this study used to cover child custody, residence as well as the right of access.