PARTNERS IN THE PROCESS: HOW ATTORNEYS PREPARE THEIR CLIENTS FOR CUSTODY EVALUATIONS AND LITIGATION

We surveyed 113 family attorneys regarding what they did to prepare their clients for child custody evaluations and litigation. Findings revealed that participants saw child custody evaluations as useful on a variety of levels and effective in settling cases. In general, participants reported using professionally acceptable procedures, appropriately advocated for their clients, and dealt with complaints in a reasonable fashion. Referrals to mental health professionals in advance of a child custody evaluation were generally made to provide support rather than for evaluation or test preparation. Work product reviews by mental health consultants were infrequent, although such reviews were seen as highly useful by those who used them. Lastly, participants reported that allegations of parental alienation and domestic violence were often used to gain leverage in custody cases. Implications for practice are discussed for both attorneys and evaluators.     

THE USE OF PSYCHOLOGICAL TESTING IN CHILD CUSTODY EVALUATIONS

Evaluation of families for purposes of assisting the court in making decisions about custody is perhaps the most complicated forensic evaluation. Mental health professionals conducting such evaluations must ensure that their evaluations validly assess areas of concern deemed relevant by the judiciary and legislature. Evaluators sometimes use psychological measures in the evaluation process, and in recent years, a number of tests designed specifically for use in child custody evaluation contexts have been developed. Because some published tests do not meet basic professional standards, child custody evaluators should carefully review any test and its supporting documentation before including it in their examination procedures. In this article, the authors discuss the rationale for using psychological tests in child custody evaluations, describe current testing practices, review and critique contemporary custody evaluation instruments, and offer a template for mental health professionals to use when considering use of a particular test.     

Helping Families by Maintaining a Strong Well‐Funded Family Court that Encourages Consensual Peacemaking: A Judicial Perspective

This article explores alternatives for the court process that promote a child‐centered approach to resolution of family law issues including a summary of procedures used in Los Angeles County to assist families. The article also explores alternatives to the traditional custody litigation model.

Key Points for the Family Court Community:
• Evaluations and trials are not the only tools available in family law.
• Structured court ordered counseling can provide a meaningful intervention and reduce family conflict.
• Alternative forms of mediation can help families address the “need to be heard” and retain personal autonomy in decision making.
• The court system should help educate families about how to resolve conflict in a safe, effective, and meaningful way.

     

Expressed‐Interest Legal Representation for Children in Substitute Care: Evaluation of the Impact of Representation on Children's Permanency Outcomes

Based on a combination of administrative data; juvenile court record review; and informed‐participant interviews of juvenile court judges, attorneys, and service providers, the current study examines the impact of the Foster Children's Project (FCP). FCP is a program that provides professional legal representation to children in substitute care. Legal representation by FCP attorneys is found to increase the rate of children's exit to adoption, leading to a higher overall rate of exit to permanence. The rate of exit to reunification is not, however, found to be affected by FCP representation. Implications for juvenile court policy and practice are discussed.

Key Points for the Family Court Community:
• The study is the first of its kind to examine the impact of client‐directed representation in cases of children in foster care through examination of Palm Beach County's Foster Children's Project (FCP), which provides professional legal representation to those in state care.
• FCP representation was found to increase the rate of children's exit to adoption, leading to a higher overall rate of exit to permanence. The rate of exit to reunification, however, remained stable.
• Research findings are based on administrative data; juvenile court record review; and interviews of juvenile court judges, attorneys, and service providers.

     

It is Just Good Business: The Case for Supporting Reform in Divorce Court

This article examines the ways in which divorce and child custody proceedings can impact employee productivity and suggests that it behooves businesses to become involved in supporting efforts to improve the process—both as a matter of community service and because it can impact their bottom line. This article further outlines some improvements that are being implemented or considered in various jurisdictions.

Key Points for the Family Court Community
• Divorce does not just impact the parties and their children. It also impacts the work productivity of the individuals involved.
• The population of individuals seeking court involvement in child custody issues has changed, and new processes must be developed to address their needs.
• There are new ideas about how to restructure the divorce process in ways that could benefit both the individuals and their employers.

     

RELYING ON THE UNRELIABLE: HOW A COURT RULE COULD ALLEVIATE THE PROBLEMS INHERENT IN THE NEUTRAL MENTAL HEALTH EVALUATION PROCESS IN CHILD CUSTODY CASES

Many states lack standards as to who should be conducting neutral mental health evaluations in child custody proceedings and what these evaluations should be comprised of. This will occasionally result in an unqualified evaluator giving a recommendation to the court as to which parent should receive custody of their child[ren]. This Note advocates for courts to adopt a court rule which specifically enumerates the qualifications of neutral mental health evaluators in the hopes of regularizing the evaluation process. The first part of the proposal addresses who should conduct evaluations by establishing the required credentials of the evaluator and minimizing the amount of evaluator bias by screening the process. The second part of the proposal focuses on the training needed before an evaluator may conduct an examination, as well as the amount of experience required.     

Do Not Make their Trauma Your Trauma: Coping with Burnout as a Family Law Attorney

In the field of family law, attorneys frequently expose themselves to highly emotional and traumatized clients. Litigation is by nature a high‐stress occupation, demanding a high level of intellectual and emotional engagement from the contesting lawyers. Adding the burden of inherently distressing content to litigation can impair a lawyer's functioning. The effects are often referred to as “secondary trauma.” This Note proposes that state bar associations should take a more active role in providing mental health support to prevent burnout in family law attorneys by (1) offering voluntary classes to educate attorneys about the dangers of, and ways to cope with, the burnout that comes with working with traumatized clients in family law and (2) organizing support groups among local family law communities.

Key Points for the Family Court Community:
• Claims against family law practitioners account for the third highest percentage of all malpractice claims against lawyers.
• Burnout is a serious problem for family law attorneys.
• Programs sponsored by state bar associations are available and need to be expanded.
• The American Bar Association's Model Rules require that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.
• The unique nature of family law, centered on relationships and emotions, puts family law attorneys at a higher risk for experiencing the effects of secondary trauma than other areas of law.
• Lawyers at risk for secondary trauma can avoid its effects by educating themselves about such effects.

     

Guidelines for Brief Focused Assessment: AFCC Task Force on Brief Focused Assessments.

The Association of Family and Conciliations Courts (AFCC) Task on Brief Focused Assessment was convened in 2007 to study the issues inherent in the use of brief focused assessment models in family courts. The resultant “Guidelines for Brief Focused Assessment” were approved by the AFCC Board of Directors in 2009 and are presented here to prompt discussion and further dialogue about this clearly needed practice.

Key Points for the Family Court Community
• Issue‐specific assessments are increasingly requested by family court judges
• Practice guidelines for clinicians conducting brief focused assessments (BFAs)
• Types of issues/questions appropriate for BFAs
• Advantages and pitfalls of BFAs
• Comparison of BFAs and comprehensive child custody evaluations

     

ATTORNEYS' BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS

We surveyed a national sample of family law attorneys (N = 192) regarding their beliefs and opinions about child custody evaluations, particularly those performed by independent/private practitioners. Findings revealed participants' strongly preferred court‐ordered evaluations performed by doctoral‐level psychologists who assumed a neutral position. The participants expressed concern regarding procedures used by evaluators, the application of evaluation data to the Best Interests of the Child Standard, and certain report components. A clear majority supported evaluators making recommendations about custody and parenting time, but their satisfaction with these evaluations varied widely. Specific concerns and suggestions noted by the participants are highlighted; we conclude with recommendations.     

A study of families in high-conflict custody disputes: effects of psychiatric evaluation

Each year approximately 2.5 million people divorce, subjecting more than 1 million children to the losses of familial breakup. Hostility in families can be greatly exacerbated by parents' repeated failures to negotiate an altered lifestyle for the family which provides for the children's best interests. Interventions with highly conflictual parents and their children must necessarily address the interface between the mental health and legal professions. How families experience this process must be carefully studied in order to create new strategies for change, not only within the families, but also to facilitate the legal system's cooperation with mental health professionals. To date, little research has been conducted which assesses the efficacy of methods used by mental health professionals to intervene in contested child custody cases. This paper describes a program at the Isaac Ray Center, Inc., designed to help parents settle their custody disputes out of court. The article presents findings based on an 18-month follow-up questionnaire and court records for 45 parents. Data concerning custody settlement, relitigation, and parents' satisfaction with the evaluation process, their attorneys, and the custody outcome are presented and discussed.     

TO RECOMMEND OR NOT TO RECOMMEND: THAT IS NOT THE QUESTION

Tippins and Wittmann provide a cogent argument for custody evaluators not to make recommendations to the court. From their forensic and scientific perspectives, they have identified some important issues, which will certainly stimulate interesting discussion among custody evaluators. In response to their article, it is my view that public sector custody evaluations offer a philosophical and procedural alternative to forensic evaluations. This article proposes that recommendations should be viewed as part of the process of evaluations rather than the outcome. Based on a qualitative and interpretive model, recommendations are judged based on their applicability, transferability, and transparency. Recommendations viewed in qualitative terms provide parents with opportunities to step out of litigation and provide guidance for parents' ongoing roles postseparation.     

SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS

This article proposes a model for the interdisciplinary colloboration of judges, attorneys, and evaluators prior to the writting of a court order for child custody evaluation in the formulation of specific psycholegal questions that guide the examination. These questions accurately reflect the concerns of the court, the attorneys, and the parties to the dispute while framing the evaluation questions within the behavioral sciences, suitable for evaluation by a mental health professional. Such a model best suits the court by providing information on specific, legally relevant areas of parenting, child development, and/or mental health useful to the trier of fact.     

Assessing the Prevention of Juvenile Delinquency: An Evaluation of a Court‐Based Delinquency Prevention Program

In 2002, the State of Ohio mandated juvenile courts to provide prevention for at‐risk youth. This study examined official court records to evaluate the effectiveness of a prevention program administered by the Greene County Juvenile Court. A sample of 362 youth referred to the program for the years 2002 to 2009 by concerned caretakers, teachers, and police was analyzed. Consistent with intake goals, 81.7% of clients were referred for at‐risk but not actually delinquent behaviors. Completion of the prevention program did not predict future court referrals, but neither did seriousness of referral behavior. Children with two biological parents were significantly more likely to complete the program, whereas referrals to Strengthening Families Program and substance abuse screening significantly predicted program noncompletion. Implications for policy and research are discussed.

Key Points for the Family Court Community:
• This article highlights efforts by county juvenile court to implement a secondary prevention program for at‐risk but not officially court‐referred youth.
• Delinquency prevention research depends on good juvenile court data and adequate comparison groups.
• Evidence‐based predelinquent interventions with external process and outcome evaluations should be the standard.

     

CRITIQUE OF CHILD CUSTODY EVALUATIONS BY THE LEGAL PROFESSION

This study explored the congruency between child custody evaluations and the needs of the legal profession. One hundred twenty-one judges and attorneys were surveyed. In general, both groups expressed similar attitudes and beliefs. Findings indicated that court-ordered evaluations were most useful, and objectivity was paramount. Judges and attorneys also expressed a need for improvements in child custody reports, particularly greater child focus, provision of custody and visitation recommendations, discussion of legal criteria, and timely completion of evaluations. It is hoped that the findings will inform professional practice and help evaluators better serve the needs of the family court.     

SEX AND HISTORY

California requires mediation of almost all child custody disputes. The effects of the variables of client and attorney gender, obtaining settlements, and prior mediation and litigation history were examined in a sample of 150 parents who completed surveys after mediating at the Los Angeles County Conciliation Court mediation service. Clients of female attorneys were more likely to respond negatively after failing to settle and were adversely affected by prior family law litigation. Female attorneys were more likely to treat fathers and mothers differently. Clients of male attorneys became negative after prior mediation but not litigation. Clients represented by attorneys of either sex found mediation procedures more helpful than did unrepresented parents. Having an opposite-sex attorney was correlated with communicating with the other parent. Both sexes expressed strong support for the mediation process regardless of whether they settled, although disputants who did settle reported a higher rate of satisfaction than did those who did not. Attorney support for the mediation was important to its success, and having opposite-sex attorneys may promote settlement.     

Out on a Limb: Appointing a Parenting Coordinator with Decision‐Making Authority in the Absence of a Statute or Rule

This Article addresses the issue of whether a court may appoint a Parenting Coordinator (PC) with decision‐making authority in the absence of a statute or court rule. The Article identifies possible sources of authority for the appointment of a PC with decision‐making authority in a state with no authorizing statute or court rule. It also provides a paradigm for constructing an appointment that allows for the benefits of Parenting Coordination but does not delegate decision‐making authority to an extent that it would constitute an impermissible delegation of judicial authority.

Key Points for the Family Court Community:
• Where a court seeks to appoint a PC with decision‐making authority in the absence of an authorizing statute or court rule, the court may find some authority allowing the appointment in (1) its equitable authority over child custody and visitation, (2) its authority to enforce its own orders, or (3) its authority to appoint other extrajudicial assistants such as a special master or mediator.
• Where a court seeks to appoint a PC with decision‐making authority in the absence of an authorizing statute or court rule, the court must craft an appointment that delegates enough decision‐making authority to the PC for parenting coordination to be effective yet, at the same time, not so much decision‐making authority as to render the appointment an impermissible delegation of a judicial function, specifically:
  • The PC's role should be limited to assisting the parties in implementing custody and visitation terms already decreed by the trial court.
  • A PC should be appointed only if the parties to the divorce consent to the appointment or if the trial court makes a finding that the case is a high‐conflict case.
  • The parties must have the opportunity for the trial court to meaningfully review any decision of the PC so that the trial court retains ultimate decision‐making authority.

     

Play by the Rules: why States Should Adopt Uniform Court Rules for Forensic Psychologists in Child Custody Evaluations

It is not uncommon for children to fall victim to the stress and tension of a contentious custody dispute. If a party seeks a mental health evaluation and the opposing party challenges the results, the child then endures a series of evaluations until a valid report is produced. The court will often remedy this situation by appointing a neutral forensic psychologist to perform the evaluation independent from a previous party‐hired forensic psychologist. 1 This Note proposes that the court instead appoint the forensic psychologist first to conduct an evaluation and draft a report. Only at the judge's discretion may the parties hire a private forensic psychologist to challenge the report. Additionally, states should codify court rules that enumerate standards for forensic psychologists in child custody evaluations. These rules should set forth criteria that shall be required and highlighted throughout each mental health evaluator's report, allowing judges to compare and contrast each evaluation more effectively. This legislation will not only reduce the child's exposure to excessive testing, but will also provide a more efficient way of arriving at a just result.     

CHILD CUSTODY EVALUATIONS

Judicial and legal changes in divorce rules and precedents over the last two decades have led to increasing involvement by mental health professionals in child custody disputes. This involvement usually entails an evaluation of the child and parents, along with a recommendation to the court regarding custody. To date, there is little empirical evidence supporting the efficacy of methods typically used by professionals in making recommendations to the court. This article presents a review of assessment methods currently used in resolving child custody disputes. It also reviews the limited number of outcome studies on child custody evaluation and methods used in litigation and mediation.     

The incidence of alleged sexual abuse in 603 family court cases

The conflict and animosity that sometimes accompanies child custody disputes can give rise to the propagation of allegations of child sexual abuse. To characterize the magnitude of the problem, the present study attempted to determine whether and to what extent child sexual abuse allegations predominate in family court litigation. The entire one-year caseload of a county family court docket was systematically reviewed and coded. Methodical evaluation of 603 family court files yielded base rates of pertinent allegations and other information profiling the cases. The findings did not support the contention that sexual abuse allegations are commonplace in child custody disputes. Sexual abuse allegations were made in 2% of cases in which custody or access was contested and in only 0.8% of the cases overal. Implications of the findings for future research were discussed.The authors gratefully acknowledge the assistance of the Honorable William R. Campbell and Barbara Scott, Clerk of Court for the South Carolina Fifth Judicial Circuit, as well as the contributions of Angie Newton, Frank Robinson, and Kimberly Ellis in the data collection process.     

THE COLLABORATIVE DIVORCE PROJECT: A Court-Based Intervention for Separating Parents with Young Children

The role the legal process of separation and divorce plays in affecting outcomes for young children and their families was examined in the Collaborative Divorce Project (CDP), an intervention designed to assist the parents of children six years old or younger as they begin the separation/divorce process (married and unmarried couples). Evaluation and outcome data were collected from 161 couples, their attorneys, teachers, and court records. In addition to positive evaluations from both parents, intervention families benefited through lower conflict, greater father involvement, and better outcomes for children than the control group. Attorneys and court records indicate that intervention families were more cooperative and were less likely to need custody evaluations and other costly services. The CDP illustrates how prevention programs can be located within the courts, can be systematically evaluated, and can aid in helping the legal system function optimally for families with young children.