MANDATED CUSTODY EVALUATIONS AND THE LIMITS OF JUDICIAL POWER

Kelly and Ramsey are clearly correct that a shift from a “how to” approach to custody evaluations to one that asks the more fundamental question “why” is long overdue. However, in addition to assessing the efficacy of custody evaluations (which Kelly and Ramsey propose), the legal system must also clarify the justification for imposing this extensive—and often expensive—intrusion into the privacy of parents. Three possible justifications for these intrusions are examined in this article: privilege, harm, and voluntariness. Is divorce a privilege, rather than a right, and can qualifications (including intrusive and expensive ones) be attached to requesting that privilege? Are custody evaluations instead justified as a means of avoiding harm to children? If a harm justification is asserted, exactly what harm do evaluations prevent, and how do they accomplish this harm avoidance? Finally, given the high value placed on parental cooperation by the family courts, is it simply too perilous for a parent to oppose a custody evaluation if one is suggested, either by the other parent or by the court? If so, are consents to custody evaluations truly voluntary?     

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.     

CHILD CUSTODY EVALUATIONS: THE NEED FOR SYSTEMS‐LEVEL OUTCOME ASSESSMENTS*

Child custody evaluations need to be studied systemically as a human service system. There is little research on the history, caseload dynamics, economics, delivery systems, or impact of custody evaluations. This article identifies five systems‐level questions about custody evaluations and examines one, outcomes assessment, in detail by developing seven outcome hypotheses. The article concludes that such research could improve the practice and use of child custody evaluations.     

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.     

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.     

COMMENTARY ON “EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:” WHAT NOW?

Replying to the paper by Tippins and Wittmann, this commentary notes that the problems they identify have been recognized for many years, yet this has resulted in little change in the practice of child custody evaluations. Three underlying reasons are offered for the stalemate that frustrates the implementation of standards for an empirically based child custody evaluation practice: (a) the economics of child custody evaluation practice; (b) inconsistencies between proposals to restrict testimony in this area and the lack of similar restrictions in most other areas of forensic practice; and (c) inadequate motivation for researchers who might contribute an empirical base for child custody evaluations. Directions for breaking the stalemate are offered for each of these problems.     

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.     

ON BEING A CHILD CUSTODY EVALUATOR: PROFESSIONAL AND PERSONAL CHALLENGES,RISKS, AND REWARDS

Conducting child custody evaluations is one of the most complex, challenging, and sometimes risky professional endeavors that a mental health professional can perform. This article examines the professional and personal challenges which may be encountered by the evaluator. In addition to discussing the role requirements and need to maintain awareness of bias and countertransference, challenges such as coping with state board or ethics complaints and possible risks to personal safety are also addressed. Suggestions for risk management and coping with the demands of these assessments are offered, as well as the benefits and rewards of engaging in this important work.     

EARLY NEUTRAL EVALUATIONS: APPLICATIONS TO CUSTODY AND PARENTING TIME CASES PROGRAM DEVELOPMENT AND IMPLEMENTATION IN HENNEPIN COUNTY,MINNESOTA

A program to apply Early Neutral Evaluation (ENE), a confidential, settlement‐oriented and accelerated alternative dispute resolution technique, to child custody and parenting time cases has been cooperatively developed by Hennepin county Family Court Services and the Minnesota Fourth Judicial District Family Court. Parties are referred by the court to a male/female team of experienced neutral evaluators for early feedback on the probable outcome of a full evaluation and an opportunity to negotiate a settlement. It has proven to be a highly successful program in its first 2 years, with the majority of cases reaching an early settlement. The ENE program reduces the stress and expense of custody disputes for clients, expedites judicial case management, maximizes Family Court Services staff efficiency, and focuses subsequent evaluations on critical issues.     

The expanding role of expert psychological evaluations and testimony in Hague child abduction litigation

Hague Convention cases are a growing niche in forensic assessments. These cases focus on returning children, or preventing their return, after international abductions, by one of the parents, has occurred. This article focuses on the legal underpinnings of the Hague Abduction Convention, the “affirmative defenses” that may be invoked to prevent a return order, including “grave risk of harm,” “mature objection”, and the “well settled defense.” The article will also focus on the increasing roles that forensic evaluators play in these matters, the distinction between the role of forensic experts in custody proceedings and Hague cases, and the inherent limitations present in these unique kinds of evaluations.     

The Place for Custody Evaluations in Family Peacemaking

Custody evaluations can serve the dual purpose of providing neutral, objective information to the court while also contributing to the possibility of earlier settlement, which coincides with the therapeutic jurisprudence goal of more positive outcomes for children and families. Research suggests that most cases settle after custody evaluations. However, most of the literature is focused on the use of custody evaluations for litigation. Evaluators, attorneys, and mental health consultants can influence parents to focus more on children's needs and less on their conflict as they go through the evaluation process. This article urges family courts to develop processes and require professionals to learn skills needed for an interdisciplinary process to utilize evaluations in peacemaking.

Key Points for the Family Court Community:
• All custody evaluation processes should aim to reduce and/or shorten children's exposure to parental conflict.
• Evaluators, attorneys, and mental health professional consultants should use the evaluation process to influence parents to be more aware of their children's needs and less invested in their adversarial positions.
• Evaluators should learn to write and orally present information and state opinions with consideration of the parents themselves as consumers of the custody evaluation as well as the court.
• Attorneys and mental health professional consultants should help clients review the report, process their emotional reactions, and consider their options for settlement versus litigation in terms of emotional and financial costs to the family.
• Court processes should be developed to contain the time and cost of custody evaluations and provide dispute resolution after custody evaluations.

     

Evaluating the Probative Value of Child Custody Evaluations

It has previously been argued that a competent forensic work product is defined, in part, by the evaluator's use of conventional forensic methods and procedures applied to child custody evaluations (Gould, 1998) and that the more judges and other legal professionals understand about forensic methods and procedures, the better they are able to critically weigh the substance and merit of a child custody evaluation (Gould & Bell, 2000). These forensic methods and procedures have their foundation in the behavioral sciences and are characteristic of competent and comprehensive forensic evaluations conducted for other legal purposes. In this paper, we provide a more detailed model for critiquing the forensic competence of a child custody report. Such a model better assists courts and lawyers in understanding how to assess the substance and admissibility of custody reports.     

BRINGING CHILDREN TO THE MEDIATION TABLE:

With the rise of divorce mediation as an effective means of resolving divorce and custody disputes, a question that arises is whether a child should actively participate in the mediation process to make his or her voice heard. This article discusses the costs and benefits of involvement, focusing on four specific approaches to the inclusion of children in divorce mediation. This article comes to the conclusion that the integration of children in mediation ought to be considered on a case-by-case basis, and further proposes that a child be included in divorce mediation in circumstances where the child's input is needed to help parents resolve an issue of dispute that concerns their child's interests.     

Models and methods of cost-effective child custody evaluation

Child custody evaluations (CCEs) are often seen as a necessity by the legal system when caregivers cannot find a resolution to their child custody disputes. In many instances, these evaluations are quite costly for the litigants and cost can act as a barrier to equal access to justice. Affluent families are better able to access private evaluators while families with lesser means may encounter delays in receiving services or be unable to afford an evaluation at all. This can, in turn, prolong resolution of league disputes, increasing the emotional toll on families, and hamper courts in making decisions in the best interests of the children involved. This article examines models of providing CCEs outside of an isolated individual provider private practice format. It examines the benefits and considerations for lower-cost evaluations, while discussing how to maintain high quality services that adequately assess family systems. Broader issues that impact the courts and overall access to justice through offering cost effective evaluations are also discussed.     

SETTLEMENT‐FOCUSED PARENTING PLAN CONSULTATIONS: AN EVALUATIVE MEDIATION ALTERNATIVE TO CHILD CUSTODY EVALUATIONS

The divorce mediation field has recently seen the development of several “hybrid” alternative dispute resolution approaches to child custody disputes. The “settlement‐focused parenting plan consultation” (SFPPC) is a form of evaluative mediation, conducted by a “parenting plan consultant” (PPC), who possesses the combined expertise of a mediator and child custody evaluator. This hybrid model is a more expedient and considerably less expensive approach than a child custody evaluation, but preserves the hallmark mediation principle of self‐determination. The article describes the theory underlying the SFPPC, delineates the role requirements, procedures, and techniques of the parenting plan consultant, and addresses legal and ethical issues.     

ASSESSING SUBSTANCE ABUSE QUESTIONS IN CHILD CUSTODY EVALUATIONS

Substance use is rampant in contemporary society, but little attention has been paid to it in the context of child custody evaluations (CCEs). This article provides concrete suggestions for integrating issues about substance abuse into a more overarching CCE and discusses specific assessment strategies.     

CONSULTANT CONDUCT IN ANTICIPATION OF A CHILD CUSTODY EVALUATION: ETHICAL AND SOCIAL DILEMMAS AND THE NEED FOR NEUTRAL PARENT EDUCATION

Mental health professionals are being retained with increasing frequency as “custody consultants” to prepare a parent for a child custody evaluation. While this practice may serve a legitimate function, no ethical guidelines clearly govern the conduct of a consultant in such circumstances. This lack of guidance has led to professional disagreement regarding the ethical implications of the practice. This ethical ambiguity is accompanied by social concern regarding the high cost of custody consulting, which has the practical effect of denying consulting services to low‐income or self‐represented litigants. This Note will describe the growing practice of custody consulting and the ethical and social unease currently associated with the practice. This Note will then propose that mandatory parent education programs be developed for parents preparing to undergo a custody evaluation. This type of educational program would provide many of the benefits of custody consulting in an ethically neutral fashion and would ensure that all parents have access to the benefits of this growing practice.     

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.     

Divorce, Custody, and Spousal Violence: A Random Sample of Circuit Court Docket Records

The fastest growing marital status category in America is divorced, with the number of divorced individuals quadrupling between 1970 and 1996. The majority of children in divorced families live with a single parent and often lose contact with the noncustodial parent. A recent review of the literature suggests that many noncustodial fathers fail to keep contact with their children and become delinquent in child support payments because of their dissatisfaction with the custody arrangement. However, there has been little examination of how custody arrangements are typically determined or settled. In addition, divorces that involve spousal violence bring further complications to child custody, visitation, and child support decisions. This study included a 20% random sample of court records for all divorces settled in one county judicial circuit court during 1998. The purpose of this study was to examine characteristics of divorcing adults as well as characteristics of child custody arrangements, visitation, and child support decisions. Contrary to popular belief, findings from this study indicate that divorce actions were almost always settled through agreement of the divorcing parties rather than by adjudication. About 38% of the couples had children in common and between 78 and 92% of cases were settled through agreement, which suggests that fathers are in fact agreeing to the custody arrangement, rather than being forced into it. About one in five records overall noted spousal violence, and there was no significant difference in settlement methods for couples with or without spousal violence. Cases with children and spousal violence were significantly more likely to have also mentioned substance use and postdecree activity. This study suggests a need for more focused attention on divorce cases with spousal violence to reduce postdecree court involvement and safety of children and adult victims, as well as further study into what causes noncustodial parents to lose contact with their children.