A Judge’s Guide

MANAGING THE CHILD CUSTODY CASE
If it appears that family discord can be ameliorated, refer the
parties to mediation or counseling prior to entering a disposition in
a case. 6
The commentary to Section 2.71 notes that, where the interests of a child are
affected by the proceeding, judges have the duty to protect a child’s well-being
since a child cannot usually do so for him or herself. 7 The court also should
“assure that legal changes in [a family relationship] are made upon sufficient
grounds and that consequent social relationships between the persons involved are
as stable and positive as practicable.” 8 Prior to deciding a child custody case, the
court should consider the results of an investigation or evaluation performed by
competent court personnel or by staff of a cooperating social services agency. 9
Creating an Atmosphere of Civility and
Respect
Judges presiding over child custody cases must be patient, empathetic, and firm.
Parties, and even their attorneys, are often anxious, demanding, and prone to
angry outbursts. These tensions often erupt in the courtroom and it is the judge’s
job to keep these situations under control. Nancy Zalusky Berg, a family law
practitioner, asserts:
I have been told in the past that there are no more difficult clients,
or, one might add, lawyers, than those involved in divorce
proceedings. The generally temporary insanity attributable to the
divorce litigants should be considered contagious since the lawyers
and judges involved with these cases so frequently seem to become
infected. Nice people behave very badly during a divorce. But then
nice people will often behave very badly whenever they find
themselves threatened in very basic ways. 10
How can you effectively deal with attorneys and parties so as to obtain the
necessary facts to make a sound judgment? Although Ms. Berg’s comments are
addressed to lawyers, they apply equally to judges. She states:
You must become psychologically minded. The first step is to
become aware of the human being before you. You must become
skilled in empathy. The best way to accomplish that is to learn to
communicate and listen effectively. 11
Mediation Parallels and Listening Skills
To enhance listening skills, mediation techniques can be adapted for use by judges.
Valerie McNaughton, a judge in Colorado, notes that judges often need to refine
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