The decision-making process in child custody cases after parental separation: a cross-cultural study between Brazil and England

When separated parents cannot reach a settlement regarding child custody and access/contacts, it can become a judicial matter. Despite being a small part of the total number of parental separations, these cases pose a challenge to family courts as they tend to be complex and involve different factors that will impact the decision-making process and the child’s best interests. The current literature has not yet examined, under a naturalistic decision-making approach, how uncertainty is structured in child custody decision-making and what strategies legal actors might apply to cope with that uncertainty. Adopting a naturalistic decision-making approach and a cross-cultural perspective between Brazil and England, this thesis aims to: (1) describe the decisionmaking process in child custody cases after parental separation; (2) identify strategies used by legal actors (judges, prosecutors, lawyers, psychologists and social workers) during the decision-making process; and (3) understand how the best interests of the child are affected during the decision-making process. The thesis is divided into three parts. The first one comprises a theoretical framework concerning the judicial process in child custody cases in Brazil and England. It also addresses a systematic-narrative review of the best interests of the child in English and Portuguese literatures. A brief review of naturalistic decision-making approach and its appropriateness to child custody cases is also addressed. The second part presents the data collection and data analysis. There was an exploratory mixed-methods approach, with three studies: (1) a pilot study addressing a child custody decision-making task with 530 ‘naïve’ participants (law, psychology and social work undergraduate students); (3) a reflexive thematic analysis with 73 experts (judges, prosecutors, lawyers, psychologists and social workers); and (4) a child custody decision-making experiment using verbal protocol analysis – 45 experts took part. The results indicate ways in which uncertainty can affect the decision makers’ performance as well as cognitive strategies used to cope with uncertainty. The main source of uncertainty was the family’s developmental struggles regarding parental separation. The legal actors’ coping strategies had the effect of reducing, acknowledging or ignoring uncertainty. All strategies seemed to have an impact on decisions and the child’s best interests. Based on this, this thesis proposes the FESFS (Familiarisation, Evoking experience, Selection, Forestalling and Suppression) model for coping with uncertainty in child custody cases. The third part of the thesis comprises some conclusions and presents a Child Custody Decision-making System (CDMS), which assembles factors concerning the child custody context and custodial decision-making. This CDMS interacts with other systems to support decision-making regarding with whom a child should live and/or the contact/access they should have with the non-custodial or residential parent.