The Dilemma of the Child’s Best Interests in High-Conflict Custody Cases: Judges’ Views and Experiences

Abstract

This study explores judges’ experiences of assessing parental high-conflict cases in Norwegian courts, focusing on dilemmas in applying the principle of the child’s best interests. Twelve judges from district and appellate courts in Norway were interviewed using a semi-structured guide, and the data were analysed using reflexive thematic analysis. The findings show that these cases are characterised by persistent complexity, including polarised parental perspectives, challenges in determining the “truth”, and uncertainty about the long-term outcomes. We discuss these dilemmas through the lens of wicked problems theory, highlighting how legal processes often struggle to address multifaceted and evolving conflicts. The study underscores the need for flexible approaches and interdisciplinary collaboration to safeguard children’s well-being in high-conflict custody disputes. However, children need stability during lengthy legal proceedings.

1. Introduction

Parental high conflict and children’s experience of growing up with parents in conflict have received greater attention in Norway and internationally in recent years. Attention has not only been directed towards negative impact on children from a present perspective, but also the negative impact from a life course perspective, as longitudinal studies have generally focused on how family networks and society are challenged by families entrenched in conflict (Ahrons 2007). Parental high conflict is characterised by hostile interactions and escalation over time, with a reduced focus on the child (Coleman et al. 2007). Most parents who experience a breakup negotiate custody arrangements on their own or with the help of professionals. However, a breakup between parents is sometimes characterised by significant conflict, and arrangements for their children’s lives and upbringing become a matter for the courts. This article explores the experiences and understandings of judges in parental high-conflict cases brought before Norwegian courts. The paper asks the following research question: What challenges do judges experience when making decisions in parental high-conflict cases where the best interests of the child are being contested? The relevance of this question is connected to the unique position of judges who observe how legal, psychological and social factors intersect in court in high-conflict cases.

2. Background

2.1. Previous Research on High-Conflict Cases

The risk of negative impact on children and decreased well-being for parents as a result of parental high conflict have been amply documented (Augustijn 2021; Norlén 2024; Polak and Saini 2019; Turunen 2017). Studies show that children involved in parental high conflict exhibit higher levels of anxiety, depression, anger and regression, low self-esteem and overall maladjustment (Kelly 2012; O’Hara et al. 2019; Polak and Saini 2019). Parental high-conflict cases often involve several professional services and become crossover cases that challenge the child, the family welfare services, and family justice professionals (Asen and Morris 2020; Bala et al. 2010; Sudland 2020). The prevalence of parental high-conflict cases seems to be stable over time (Statistics Norway 2025a) and the number of cases brought before the courts also seems to be stable (Norwegian Courts 2024). These cases are not unique to the Norwegian system and exist across different countries in various legal systems (Birnbaum and Bala 2010; Kaldal et al. 2024; Van Lawick and Visser 2015). Studies show that parents battling in court represent a risk factor for their children and that custody disputes entail emotional and intimate matters that will continue long after legal proceedings have concluded (Kaldal et al. 2024). Questions of custody and visiting arrangements may be raised several times during the childhood of the children involved, and these questions may continue for the rest of the parents’ lives (Sheehan 2018). Studies indicate there is a risk of children and families ending up in a revolving door situation, involved with multiple services with multiple mandates and jurisdictions (Heggdalsvik 2023; Houston et al. 2017). For judges, applying the principle of the best interests of the child in custody cases includes an assessment of the short- and long-term consequences. Recent studies show that judges find assessments of parental high conflict complex and challenging (Heggdalsvik et al. 2025; Kaldal et al. 2024). Since children are at risk of becoming entrapped in revolving door situations, we argue that there is a knowledge gap in terms of the intersections of several overlapping and reinforcing areas underlying judges’ decision-making in court (Smyth and Moloney 2019).

2.2. Parental High Conflict in a Norwegian Context

When professional mediation or low-threshold family counselling services are not successful, parental disputes are brought before the court in order to arrive at a solution, and the number of these high-conflict cases seems to be stable over time (Courts of Norway 2023; Norwegian Courts 2024). Norway provides mandatory state mediation when parents with children under the age of 16 separate. This mediation is set within the framework of Section 51 of the Children Act (1981), which focuses on arrangements “in the children’s best interests” and is conducted within the framework of the Family Counselling Services (FCS), which is a free public low-threshold service regulated by the Family Counselling Services Act (1997). Over the past ten years, there has been a national focus on improving the professional content of FCS parental high-conflict mediation to prevent the most heated parental conflicts from evolving (Kåstad et al. 2021). The overall aim is to promote co-parenting and prevent parental conflict from ending up in court. This has led to the implementation of out-of-court resolution models to handle and prevent parental conflict (Kaldal et al. 2024). However, if parents fail to reach an agreement through mediation, they have the option of taking their case to court, although this is not a free service. When a request is made to bring a parental high-conflict situation before court in Norway, this falls within the framework of Section 7 of the Norwegian Children Act (1981), which regulates questions and conflicts concerning child custody. Such conflicts are handled by the district court in the first instance, and decisions may be appealed to the Court of Appeal, which usually proceeds as a full appeal hearing, while the Supreme Court only hears cases that raise issues of general legal importance (NOU 2017).

Norway was the first country in the world to establish a public child welfare and protection service (Dahl 1978) and is regarded as one of the world’s most child-centred countries (Berrick et al. 2023; Hennum 2014). The United Nations Convention on the Rights of the Child (1989) has been ratified by Norway and underpins all decisions regarding children (Hestbæk et al. 2023). Norway, a sparsely populated country with approximately 5.6 million inhabitants (Statistics Norway 2025b), is a wealthy welfare state due to its national oil fund and high levels of taxation. Child and family services are organised in the public sector, and the state’s right to intervene in family life is much stronger compared to more politically liberal Western societies (Helland et al. 2022). Policy documents have explicitly raised the question of how legal proceedings in custody disputes can be adapted to suit the best interests of the child to minimise the negative child welfare consequences in such high-conflict cases (NOU 2017, 2020).

3. Method

This small-scale study was conducted in Norway. Twelve court judges were interviewed in depth, using a semi-structured interview guide, about their opinions and experiences of parental high-conflict cases. Part of the study regarding the judges’ description of the parents in these cases has already been analysed and published (Heggdalsvik et al. 2025). The research question for the analysis of the present article is: What challenges do judges face when making decisions in parental high-conflict cases where the best interests of the child are being contested? A qualitative approach based on reflexive thematic analysis (Braun and Clarke 2006, 2019, 2022) was chosen to explore the judges’ understanding and experiences of high-conflict cases.

3.1. Recruitment, Interviews and Analysis

To ensure representation in this study, we ensured that the judges were recruited from all regions of Norway. We contacted a national legal coordinating body called “The Courts of Norway” (www.domstol.no) to recruit the judges. The Courts of Norway helped us reach the regions by forwarding an e-mail containing information about the study and an invitation to participate in it. Consequently, the invitation was, in principle, distributed to the entire population of eligible judges. However, it is not known how the individual judicial regions distributed the invitation among the judges. We also identified a key informant with extensive experience as a judge in parental high-conflict cases. This key informant contributed to the recruitment process by contacting his peers about our study. When conducting the interviews, we also recruited informants through those informants we had already interviewed—that is, through the so-called “snowball effect” (Thagaard 2018). The 12 informants comprised three men and nine women. Three of the informants are judges in courts of appeal and nine are judges in district courts. The overall experience of the 12 judges ranged from two to 30 years. All judges who expressed an interest in participating were included in the study. We assessed that the 12 interviews provided sufficiently rich information to address the study’s research question. Recruitment and data collection were therefore concluded after the twelfth interview.

In order to stimulate the judges’ reflections on different themes on the topic of parental high-conflict cases in court, the interview guide was constructed around three themes: (1) the phenomenon of parental high conflict, (2) collaboration with other professional services, and (3) the characteristics of the parents involved in these cases. This analysis is linked to the first theme of exploration. The judges were asked to reflect on cases that had been fully adjudicated in the court rather than on appeal proceedings. We made systematic use of Braun and Clarke’s stepwise approach to reflexive thematic analysis (Braun and Clarke 2022). We are experienced social workers with PhDs in social work and have previously undertaken research in the field of child welfare, including parental high-conflict cases. To maintain reflexivity and awareness of how our preunderstandings and experiences might influence the analytical process, we initially conducted our analysis separately and then collaborated on the final analysis, discussing our different analytical choices and understandings. After we had conducted the interviews and then transcribed and re-read them (the first two steps in Braun and Clarke’s thematic analysis process), the multiple descriptions of complexity became evident. In order to grasp the dilemmas and level of complexity described by the judges, we formulated the following research question: What challenges do judges face when making decisions in parental high-conflict cases where the best interests of the child are being contested? Through our further analysis, we constructed three themes in the empirical material, as well as subthemes (see Table 1). The analysis is illustrated and exemplified by quotations from the interviews, where the most descriptive and illustrative quotations were selected to exemplify the themes and subthemes. Quotes are used from all 12 judges and referred to by using the term N1-12 due to confidentiality. The analysis did not reveal any gender differences to report.

Table 1. Overview of the findings.

Theme 1: What Is the Actual Problem?	Theme 2: What Is the Best Solution?	Theme 3: What Are the Consequences?
Parents are blind in their perspectives	Resolving the conflict versus coming to a solution	Uncertain future
The court as an arena that polarises and reinforces disagreement	Finding the “truth”?	Cases coming back like “boomerangs”
	These cases go beyond the subject of law

3.2. Research Ethics

This study was approved in 2024 by the Norwegian Agency for Shared Services in Education and Research (Sikt, # 103713) and adheres to the research ethics regulations of Western Norway University of Applied Sciences. All procedures follow ethical standards. Informed consent was obtained from all participants in advance of the interviews, and the participants were also asked to give their consent to being digitally interviewed on Teams. In addition, the participants were asked for their consent to be interviewed before the digital recording began. The recorded interviews were deleted as soon as the digital transcriptions were anonymised and completed.

4. Findings

All the Norwegian judges interviewed expressed their concern about children involved in parental high-conflict dispute cases brought before the court. They discussed how many of these children live in the midst of a conflict for many years, and expressed concern about how exhausted these children appear to be. Most of the informants emphasised the complexity of these cases. When analysing the interviews in relation to the research question, we ended up constructing the following four themes and subthemes.

Each finding is exemplified by quotations from the participants in order to illustrate the overall themes and subthemes.

4.1. Theme 1: What Is the Actual Problem?

Disagreements between parents about what the problem is appear to be one of the main drivers of conflict. One of the key characteristics of parental high-conflict cases is deadlocked perspectives and positionings, and how these are reinforced over time. Our informants described these different perspectives and positionings and how a court setting will polarise rather than lessen the different positionings of the parents involved.

4.1.1. Parents Are Blind in Their Perspectives

The informants experienced differences in how parents viewed the cause of their problems and how they described their understanding of the situation. Almost all the informants expressed heartbreak for the children involved and linked it to the intractable situation of how their problems are understood. As N1 stated: “It’s so hard to actually do something in these cases because the parents are so blind and stuck in their ways, with so little ability to show some leeway.” Other participants illustrated this blindness of perspective as follows: “These children are in a very difficult situation, torn between two totally different opinions, and I think their parents don’t realise how hard this must be for them when a conflict seems to be never ending.” (N10) and: “These parents are entirely deadlocked and cannot see the conflict from their child’s perspective” (N12).

It seems that each parent actually believes that it is only they themselves who see the situation from their child’s point of view, so a frustration frequently expressed by the informants is the ‘blindness’ of the parents due to the high intensity and seemingly endless duration of such cases.

4.1.2. The Court as an Arena That Polarises and Reinforces Disagreement

When problems are framed from such different perspectives, the court can become an arena that can contribute to deadlocks and reinforce the conflict by encouraging the two different problem framings. As N3 put it: “A court is not the best place for solving these types of conflicts. You are supposed to talk negative about the other party and highlight your positive characteristics.”

Several of this informants underscored this polarisation of conflict and how time is of the essence in the proceedings since the two parents are supposed to be good parents to their child while engaging in a court case against each other: “It’s very damaging for the children involved, and we need to speed up the court process where an already deadlocked conflict becomes even more polarised by the court system. We (the court) pinpoint the most obvious differences between the parents because we understand that balancing being a good parent while telling a neutral judge how hopeless the other parent is, affects your attitude towards parental collaboration. After all, psychologically, if you have one specific mindset, and this is reinforced by your lawyer, who is willing to go to war for you, then your views are legitimised, and the cause of the conflict can be blamed on the other party” (N7). When talking about how the arena of the court polarises and reinforces the conflict, the informants problematised the role of the lawyers involved. The classic role of the lawyer as the party’s ‘weapon carrier’ is not really compatible with the notion of serving the best interest of the child, who needs two parents who are capable of collaborating instead of being at war with each other.

The following quotation illustrates this: “When lawyers are in the picture, you get a situation where the goal is to win the case, to come up with the best arguments, with witnesses and evidence” (N12).

4.2. Theme 2: What Is the Best Solution?

When our informants discussed parental high-conflict cases in court, the level of complexity involved became evident. The problem of actually solving these cases, and the problem of finding a ‘reality’ in the various aspects of the problem from the parents’ perspectives challenged the judges’ mandate to solve the case.

4.2.1. Resolving the Conflict Versus Coming to a Solution

A dilemma described by all the judges is the tension between actually solving the case versus coming to a solution. In their view, these cases can be solved through mediation, by trying to move the parents towards seeing each other’s perspectives in the hope of achieving collaboration, and this takes time. However, a lot of time has already elapsed, with the conflict continually escalating. On the other hand, coming to a decision may stop the conflict from escalating and provide some peace for the child involved. The following quotation illustrates this dilemma:

“When it’s as deadlocked as it actually is, experience shows that it’s really hard to solve the case and find optimal solutions. I even take these thoughts home with me because I’m a realist and imagine how we’re never going to solve these problems and how the children keep living in this situation… So there are weaknesses, but at the same time, they (the parents) cannot manage to resolve it by themselves, and the level of conflict is so high. When it’s not possible to find a solution, someone has to make a decision and say how things are going to be”.

(N3)

The court’s role of actually deciding the best solution for the child is one of its strengths in these parental high-conflict cases, as exemplified by N5, who said: “The court has the power and authority to protect a child and to set some limits for the parents, but the solutions usually come through mediation”, and by N6, who said:

“We need an arena for making decisions and cutting through disagreements, but we also need to facilitate finding an agreement… So, there’s a dilemma of you, the judge, holding a lot of power, and you have to keep up with the rules of procedure, and at the same time, we might move too fast and not listen enough.”

Other informants pointed to this dilemma with less optimism about the court as an arena for handling such cases:

“I think the court has too strong a belief in its ability to solve these types of conflicts. We don’t solve the conflict; we reach a decision regarding where the child will live and the extent of their visitation rights, or if it’s to be shared permanent custody. But we don’t solve it. We give them something they have to live with”.

(N12)

One informant seemed affected by a kind of hopelessness when they stated:

“I really feel for these children because it’s very difficult to find good solutions in such cases, and many of us are frustrated in court about not being able to do something. We have the ability to decide as a means of action, and sometimes I think we forget that our mandate is to decide in a disagreement, and instead we go in the other direction by trying to help the parties. It simply feels a bit insoluble”.

(N11)

4.2.2. Finding the “Truth”?

The informants in this study were concerned about different presentations of the various cases and the different perspectives of the parents. The judges distinguished between cases where two parents fought equally over their child and other cases where there was an imbalance between the parents. They indicated that it challenges them to actually find the” true picture”, and they emphasised the importance of getting comparable information through evidence from other sources and services. They had different ways of describing this. One informant described the problem of getting the true picture as follows: “One of the main tasks in these cases is to discover what the reality really is. Because you’re presented with two opposed worlds. And often, neither of the two so-called realities is real” (N8).

N1 also referred to the struggle to define reality and emphasised that it is a time-consuming process: “It’s important to avoid the court process becoming a debate about what the truth really is.”

As N5 stated:

“I think we need an overall record of the journey of these families through the various services in the cases, in order to “bell the cat”. This is a “squabbler” and she always creates conflict, she pretends to collaborate, but she really sabotages everything. Or these parents are equally desperate and might benefit from some communication tools to improve their focus on their child’s well-being.”

Another informant underscored the problem of the parents portraying themselves as perfect in court:

“When we meet parents in court, they are newly groomed, and it’s a context in which they control their feelings better than they would in ordinary life. So, we need to be smart and look beyond that, and we need documentation from other services, and we need to try to figure it out. Is there a power imbalance between the parents?”.

(N10)

4.2.3. These Cases Go Beyond the Subject of Law

Based on the judges’ experiences of these cases, they argued that the subject of law on its own is insufficient in such cases, a point illustrated by the following quotation:

“In my opinion, these high-conflict cases go beyond the subject of law. The main issue is to disentangle the conflict. The problem is more to do with social work and psychology than law. But at the same time, these assessments involve professional judgement, which also involves the subject of law”.

(N6)

All the participating judges told us how important psychological expertise is in these cases: “I feel the court is not flexible enough and has too few tools in its toolbox. What you often need is psychological expertise” (N11).

4.3. Theme 3: What Are the Consequences?

In this study, the judges indicated that parental high-conflict cases are difficult to handle because of the problem of looking into the future. Consequently, many cases return to the court, because the solutions do not fit the parties’ view of an optimal solution.

4.3.1. Uncertain Future

In court, many cases revolve around what has already happened. In these parental high-conflict dispute cases, solutions are based on predictions for the future related to ‘the child’s best interest’. Here are two quotes describing the problem of looking into the future with all its complexity and what might happen to children and families: “It’s hard to predict the best solution for this child, you may find a solution that is suitable for the next one to two years, but how it will turn out and where the parents will live, everything’s so uncertain” (N1), and “We try our best to reach a robust and final solution with the goal that the case is not returned to court. But whether one solution or another is best is hard to say, and we know very little about the consequences” (N1). Regarding this uncertainty, several informants said it was a problem that the court had no feedback system other than cases returning to court. The need to consider the court as being a suitable venue for these cases fuelled stories among the judges of arriving at optimal solutions. N12 stated the following: “The more time and money we (the court) invest in solving these cases, the more we describe the solutions as successes. But actually, we don’t know what people think and feel afterwards, and how the solutions will work out”.

4.3.2. Cases Coming Back Like “Boomerangs”

When asked about the court’s limitations in such cases, the informants raised the revolving door effect. One of the most frustrating experiences for many of the judges was cases returning to court for a new decision. As N9 put it:

“It’s very difficult to find good solutions for the children, and one of the consequences of this is these cases returning to court like a “boomerang”, when you think ok, we’ve reached a solution that none of the parties are happy with, and then it all continues. Some of these cases remain in the system until the child turns 18 years of age and is not a child anymore.”

Other informants linked this dilemma with shortcomings in the entire service chain for these families: “We need to develop better services in order to help these families because they keep coming back to court” (N4). Dealing with the problem of cases returning to court was also cited as a benchmark for robust and good decision-making in court: “As a judge, I need to think that the goal is to create peace so that the case doesn’t return to court six months later” (N10).

5. Discussion

The principle of the child’s best interests is a cornerstone of Norwegian family law and international conventions (Children Act 1981; United Nations Convention on the Rights of the Child 1989). However, our findings illustrate how this principle becomes difficult to apply to parental high-conflict cases. Judges described three interrelated dilemmas: defining the problem, finding a solution, and predicting the consequences. Parental high-conflict cases are characterised by the parents’ reduced ability to maintain their focus on their child due to the hostility and stress they experience over time (Coleman 2014). Both parents approach the court, claiming to act in their child’s best interest. The normativity in the principle of “the child’s best interest” has become well established (Hennum 2014). The judges interviewed in this study problematise the traditional approach in court where, based on the evidence in the case, the court is tasked with “revealing” the truth and finding proper solutions to the problem. The premise for the law and the jurisdictional framework in court seems to be that there is a right way to manage parental disputes in high-conflict cases, by defining the problem and achieving a clear solution based on the consequences and outcomes for the child hence, the conclusion “in the best interest of the child”.

In order to discuss the dilemmas presented from the judges’ perspectives in such cases, we will turn to the theoretical lens of wicked problems (Rittel and Webber 1973), which allows for a deeper understanding of why these cases might be inherently complex and resistant to straightforward resolution. This theoretical lens was chosen after the analyses were conducted. The themes identified—polarized parental perspectives, uncertainty about the “truth”, and the revolving door effect—align with the characteristics of wicked problems.

Research wise, we have previously argued that the complexity, unpredictability and instability of parental high-conflict cases as a phenomenon are compatible with the framework of wicked problems, and when dealing with these kinds of problems, the professionals involved need to be aware of their multicausality and interdependencies (Heggdalsvik et al. 2022). Wicked problems refer to problems that are very complicated and not easily solved (Rittel and Webber 1973). These problems are multifaceted due to their interconnected and evolving nature, where tame problems are the opposite, are easier to define and handle, and can be treated systematically using an analytical and linear approach. The hallmarks of Wicked Problems include their lack of a clear definition and thereby a clear solution, as well as all potential solutions attracting potential new problems (Rittel and Webber 1973). In other words, there will be multiple stakeholders with conflicting perspectives, struggling for their own perspectives to be regarded as the truth. When wicked problems are discussed, a variety of interpretations and solutions are identified, with each version of the problem having an element of truth but no single definition that captures the whole picture (Brown et al. 2010).

The nature of these parental high-conflict cases in terms of their “wickedness” and complexity seems to challenge the court’s linear approach, which is to identify the problem, find the proper solution, and then the “problem is solved”. The judges all emphasised how these cases raise dilemmas according to the level of complexity in their understandings and solutions, and how difficult it is to decide what is in the best interest of the child. If high-conflict cases in court are to be seen as wicked problems as opposed to more tame problems, we could ask what happens if they are handled using technical-rational responses in line with tame problem solutions like those which, in many ways, the court represents. Judges’ accounts of deadlocked positions and the court’s role in reinforcing polarization underscore how legal proceedings, designed for “tame” problems, struggle when applied to inherently wicked problems. For instance, the dilemma between resolving a conflict and delivering a decision illustrates the tension between procedural efficiency and substantive justice. When dealing with wicked problems, it is necessary to support families before the problems escalate and become more entrenched (Devaney and Spratt 2009). In Norway, the system has approached the complexity in parental high-conflict cases by focusing on the potential of professional quality mediation based on research and practice-based knowledge (Kåstad et al. 2021). In 2017, the FCS implemented a joint method throughout Norway developed by the Norwegian Directorate for Children, Youth and Family Affairs (Bufdir) in order to offer the best mediation possible to prevent cases from evolving, escalating and reaching the court system. This major investment in parental high-conflict cases also incorporates the mediation approach into the court system, offering greater opportunities for judges to ask the FCS for extended mediation (Gundersen 2022). The other side of this emphasis on mediation is that time is running out for the children involved. By the time a conflict reaches the court system, important developmental childhood years may have elapsed for the children involved. This brings us to the main but complex question of what is in the best interest of the child.

Our study is similar to other studies in showing that when such cases are concluded in court, the parties often resist the outcome, and the conflict continues (Van Lawick and Visser 2015). This is in line with research that promotes the value of professionals more proactively preventing the revolving door effect (Houston et al. 2017). The judges problematised this dilemma of acknowledging the complexity of cases while also deciding on the case as the court requires. They try to make decisions that are robust enough to take into account the parties’ different perspectives, but often find the cases being returned to court. However, a court decision is required by the parties who, in turn, over time, often disagree and oppose the chosen solution and return for mediation and/or appeal their case in court. This study does not provide any clear answers, but rather addresses the dilemmas presented by the interviewed judges when making decisions in parental high-conflict dispute cases in the best interests of the child.

6. Concluding Remarks and Implications for Practice

Parents in conflict have a democratic right to seek a solution through a court’s decision. The complexity in high-conflict cases creates a dilemma for the judges in achieving solutions that are in the best interest of the child. These cases tend to operate in and become intertwined with the professional welfare services and the court system for years, with the burden falling on the child’s quality of life and their development. The judges in this study emphasise the need for psychological expertise and interdisciplinary collaboration, pinpointing the gap between a court’s mandate and the social realities of high-conflict families. By addressing the complexities and gaining a deeper understanding of the mechanisms at play for professionals assisting children involved in parental high-conflict cases, this study pinpoints some key factors to be aware of when trying to find “the truth” and the most appropriate answer in the court system as a last chance to achieve workable parental collaboration in the best interest of the child.

7. Limitation of the Study

This is a small-scale qualitative study comprising only 12 informants, and the findings are not to be generalised. However, we have gained insights into the experiences and reflections of these 12 judges regarding the huge complexity of high-conflict parental cases in court and of the dilemmas involving decisions being made in the best interest of the child. These kinds of in-depth insights from small-scale qualitative studies provide valuable knowledge about the topic studied.