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.     

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.     

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.

     

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.     

CHILD PROTECTION EVALUATIONS The Forensic Stepchild

In child protection cases, the mental health evaluator is required to have a broad range of expertise in family violence and child and adult psychological issues. This article reviews epidemiological as well as other quantitative data to provide an empirical foundation by which to understand the problem of family violence, the characteristics of abusers and victims, and the consequences to the child who is a witness to or victim of family violence. Forensic evaluation guidelines and recommendations for structuring child protection evaluations are addressed.     

LEGAL USE OF MENTAL HEALTH EVALUATIONS IN CHILD PROTECTION PROCEEDINGS

The authors examine the use of mental health evaluations in legal decision making within a large, urban juvenile court system. The focus was on court files in child protection cases relating to 171 randomly selected mental health evaluations completed on parents and 44 evaluations completed on children. Parent evaluations (46.7%) were much more likely to be present in court files than child evaluations (5.9%), and evaluations conducted by in-house court clinicians (63.8%) were more often present than those conducted by noncourt clinicians (37.5%). References to evaluations in child welfare, legal, or mental health documents varied with the type of information, subject (parent or child), and source of the evaluation. Findings and/or recommendations of evaluations were cited in legal or mental health documents for approximately two thirds of parent evaluations but only one third of child evaluations. Evaluation findings and/or recommendations were stated as a basis for legal decisions in 36.2% of court-based parent evaluations, 21.0% of noncourt-based parent evaluations, and 2.3% of child evaluations. These results provide evidence of a modest impact of parent evaluations on legal decisions and notably less impact for child evaluations. The authors suggest directions for future research and practice in order to increase the accessibility and usefulness of clinical evaluations in legal decision making.     

TIPPINS AND WITTMANN ASKED THE WRONG QUESTION:

Tippins and Wittmann (2005) provide an important analysis of the limitations of child custody evaluations, but they are wrong to propose that court-appointed evaluators should be precluded from making recommendations about best interests decisions. While some of the evidence of evaluators may fail to meet the high standard of reliability expected for "expert evidence," the role of court-appointed evaluators in child-related cases is not the same as the role of party-retained experts in other types of litigation, and the legal basis for their involvement in the family law dispute resolution process is very different. The family courts should not apply the "expert evidence" standard when deciding how to use the evidence of a court-appointed evaluator, but rather should use a more flexible standard that takes account of the family law context. If the Tippins and Wittmann proposal is adopted, it will have negative implications for the resolution of family law cases, including making settlements less common, thereby deleteriously affecting children.     

RESPONDING TO THE CALL FOR CHILD CUSTODY EVALUATORS TO JUSTIFY THE REASON FOR THEIR PROFESSIONAL EXISTENCE: SOME THOUGHTS ON KELLY AND RAMSEY (2009)

Kelly and Ramsey (2009 ) propose that it is time to examine the costs and benefits courts and participants derive from child custody evaluations. A structure for a research program was suggested. This article endorses this call for such an examination on the system that provides for forensic mental health evaluations for custody disputes. There is a need to examine the costs and benefits of various types of approaches that are emerging, including the comprehensive evaluation and brief, focused evaluations. This article suggests that there is a need for forensic quality control of the work product that is produced by evaluators. Courts are cognizant of the need to encourage settlement between parties, but they also need to be accurate in making judicial determinations that will be in the best interests of children. Quality evaluations are a cornerstone in working toward this goal. Kelly and Ramsey are mindful of the need for evaluations to facilitate settlement, but also to get it right for the court on accurate predictions about children's developmental outcomes.     

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.     

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.     

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.     

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.     

ASSESSING FOR ALIENATION IN CHILD CUSTODY AND ACCESS EVALUATIONS

In-depth child custody evaluations can be critical in forming an accurate understanding of families in which alienation of children is a concern. By integrating interview and psychological test data of parents and children along with collateral information the evaluator can differentiate an alienated child from children with other forms of parental rejection and can form a thorough understanding of the multiple contributants to the alienation. This comprehensive and integrated understanding is then used to develop a clear and specific intervention plan.     

LEGAL AND PSYCHOLOGICAL MANAGEMENT OF CASES WITH AN ALIENATED CHILD

Cases entering the family court with an alienated child require intensive and coordinated case management to intervene effectively. It is critical to link the authority of the court with the delivery of mental health services to address the complex systemic factors that may entrench a chilďs unwarranted rejection of a parent. This article provides principles of legal and psychological case management for families with an alienated child, followed by various structural interventions, including sample court orders, for managing these cases as they progress through the family court process. Finally, criteria for making custody recommendations in the most severe cases of child alienation are provided.     

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.     

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.     

SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS

Part 1 of this two-part series proposed the use of an interdisciplinary model in the development of psycholegal questions that guide child custody evaluations. It was argued that defining the scope and focus of an evaluation at the time that a court order is entered provides a more structured and clearly defined set of questions to be researched and examined within the context of the behavioral science literature. The present article offers a conceptual model to be used in gathering and analyzing data in child custody evaluations. It is argued that the use of forensic methodology provides a more scientific basis for the information provided by the evaluator to the trier of fact, ultimately resulting in a more useful and accurate picture of the family in question.     

THE IMPACT OF CLIENT AND EVALUATOR GENDER ON CUSTODY EVALUATIONS

Fifty-one child custody evaluations from registries of the Family Court of Australia were analysed for evidence of sex role and sex trait stereotyping by using a content analysis program. The categories used in the content analysis included expressive and instrumental sex role traits, power-related behaviours, communications about family and marital interactions, basic care-taking, attachment, and the parents' environment. When analysed by the gender of the evaluator, it was found that male and female evaluators significantly favoured the parent of their own gender in specific categories. It is suggested that the court context has been important in influencing the content of the stereotype.     

ASSESSING CREDIBILITY IN ALLEGATIONS OF MARITAL VIOLENCE IN THE HIGHCONFLICT CHILD CUSTODY CASE

Forensic psychology has not systematically examined the problem of evaluating the credibility of allegations of marital violence within the context of a child custody case. The importance of this issue stems from the negative effect of family violence on children, the implications for parenting effectiveness, and consideration of the feasibility of joint custody. When marital violence has not been previously disclosed or objectively documented by prosecution, there is a need to examine the credibility of the allegations because of the strategic incentive for both sides to distort historical events. A six-factor model is presented to assist the child custody evaluator and judicial decision maker in this task. A risk assessment approach to marital violence in the custody evaluation context is presented. The need to examine the empirical basis of marital violence allegations in custody litigation should not discourage victims from raising the issue and does not diminish the seriousness of family maltreatment as a social problem.     

CUSTODY EVALUATIONS

The procedures used to conduct custody evaluations and the purpose of such reports are currently under review by mental health and legal professionals. This article describes (a) the limitations inherent in clinical assessment and (b) characteristics of the adjudication process which necessarily limit the evaluator's thoroughness and the potential usefulness of evaluations. Given the primitive methods available for assessing families and predicting outcomes, the inability and unwillingness of the courts to process large amounts of clinical data, the conflicting motives surrounding evaluations, and the biases inherent in custody recommendations, the author argues for limited, well-defined, and objectively supported assessment procedures and evaluation criteria.