Concerns at the margins of supervised access to children

By: Elizabeth Barker Brandt
James E. Rogers Distinguished Professor
University of Idaho College of Law

I. INTRODUCTION
Supervised access has emerged as an important tool for managing child custody matters. In the past fifteen years, formal, supervised access programs have become increasingly common throughout the country. Supervised access encompasses a number of different situationsranging from the supervision of custody exchanges between parents to the supervision of all of a parent’s contact with her or his child. Supervision may be provided by trained supervisors, by volunteers, by professionals who also provide therapeutic services in the context of supervision, or by family members. Supervision may take place in locations especially dedicated to purpose ofsupervision, in the offices of professional supervisors, in neutral public locations, or in private homes.
While parents may voluntarily utilize supervised access services, supervision is most often ordered by courts. The circumstances leading to court-ordered supervised access to children are varied. Supervised exchanges may be ordered for safety reasons because one or both parents pose a dangerto each other or to the child or have a history of acting inappropriately when in the presence of each other or the child. Temporary supervision of a parent’s contact with a child may be ordered where the parent and child have previously not had a relationship or where there has been a long interruption in the parent-child relationship; in such situations supervision is ordered to facilitate there-establishment of the parent-child relationship. A parent’s contact with his or her child also may be supervised temporarily when allegations are pending that he or she subjected the child to dangerous, abusive, threatening or inappropriate behaviors or situations. Often the goals of such temporary supervision are not only to protect the child until an accurate assessment of threat to thechild can be undertaken, but also to deliver services to the child and parent with the goal that supervision may no longer be necessary at some future point in time If a court finds that a parent subjected his or her child to such conduct or circumstances, longer term supervision may be ordered to continue the contact of the child with the parent even where there is no realistic possibility thatordinary access will be possible.
The growth of supervised access to children reflects larger trends in custody law. The absence of clear judicial rules in the area of custody has contributed to an increase in conflict and in strategic litigation behavior by parents. In highly conflicted cases, supervised access is a tool that can protect children form some aspects of parental conflict.However, supervised access can also be used as part of a litigation strategy by parents who seek to gain an advantage and to exercise dominion over the other parent. Furthermore, courts may award visitation in high conflict cases to provide a perceived buffer for the children when the court can’t or doesn’t get to the bottom of the dispute. Second, the move of courts toward a paradigm ofpost-divorce shared parenting and custody determinations resulting from compromise and settlement has made it increasingly difficult to eliminate a parent’s custodial contact with children. Together these considerations have led to a reluctance by courts to eliminate custodial contact between parents and children. Supervised visitation is a mechanism that enables courts to continue parental custody incases even where one parent is a threat to the child or to the other parent.
Orders requiring some form of shared parenting after divorce are increasingly common. The support for this conclusion is largely anecdotal. There is little quantitative research on custody outcomes. The most important study -- by Eleanor Macoby and Robert Mnookin – was conducted in 1990 and is thus fairly dated....