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.     

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.     

THE ART AND SCIENCE OF CHILD CUSTODY EVALUATIONS

Should a child custody evaluation be a clinical tool informed by forensic methods and procedures or a forensic tool informed by clinical experience? The authors conclude that an evaluation requires a delicate blend of scientific thinking, clinical understanding, through observations, appropriate use of psychological tests, and self‐report measures and information from sufficient collateral sources. Evaluators must pay attention to internal biases and integrate them with the relevant literature. Finally, evaluators must remember that their evaluation and reports will be used by both the courts and the family in reaching a decision on behalf of the children.     

A COMMENT ON WILLIAM J. HOWE AND HUGH MCISAAC'S ARTICLE “FINDING THE BALANCE” PUBLISHED IN THE JANUARY 2008 ISSUE OF FAMILY COURT REVIEW

This article is a response to an article written by William Howe and Hugh McIsaac that questions their recommendations that court‐based mediation not be used when certain types of persons appear in court. We assert that it will be very difficult for the court to identify these people. Further, we argue that mediation practice has advanced so far that even these persons (those with serious issues of domestic violence, substance abuse, and mental health) should be given an opportunity to participate in mediation before being referred to the adversarial court process.     

COMMENTARY ON TIPPINS AND WITTMANN'S "EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:

Although in substantial agreement with Tippins and Wittmann's analysis, their call for a moratorium on the practice of custody evaluators making recommendations to the court does not solve the many problems that they have raised, and may have unintended consequences which place families at even greater risk. This commentary reflects our agreement with some of the authors' major points of contention, focuses on several points of disagreement, and suggests alternative remedies for the shortcomings and ethical problems described in child custody evaluations.     

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.     

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?     

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.     

SAME‐SEX MARRIAGE AND DIVORCE: A PROPOSAL FOR CHILD CUSTODY MEDIATION*

Same‐sex marriage is a contentious, politically charged issue full of diverse, complicated considerations. In 2003, Massachusetts joined the list of jurisdictions to legalize same‐sex marriage, the first in the U.S. Now that same‐sex couples can marry in particular international jurisdictions, governments must address how to sensitively allow these couples to divorce. Same‐sex couples have a unique set of needs and issues, most clearly demonstrated if children are involved in the marriage. This Note argues for the creation of mediation programs in American jurisdictions with same‐sex marriage, to specifically determine child custody agreements upon divorce.     

COMMENTARY ON KELLY AND JOHNSTON'S "THE ALIENATED CHILD: A REFORMULATION OF PARENTAL ALIENATION SYNDROME"

In a previous issue of this journal, Joan B. Kelly and Janet R. Johnston describe their reformulation of the parental alienation syndrome (PAS). Here, I present areas in which I agree with the authors and areas in which I disagree. Particular focus is placed on these PAS-related issues: the syndrome question, PAS versus parental alienation, the medical model, custodial transfer, gender bias, DSM-IV . empirical studies, and the misapplication of PAS.     

MEDIATIVE EVALUATIONS: THE PROS AND PERILS OF BLENDING ROLES

Child custody evaluators with experience in mediation may be tempted to use mediation skills and strategies in their evaluation processes. This article explores the benefits and risks of blending mediation with evaluation, comparing the perspectives of professionals and clients.     

ASSESSING MUTUAL PARTNER-ABUSE CLAIMS IN CHILD CUSTODY AND ACCESS CASES

This article explores issues associated with mutual claims of domestic violence in the context of research on gender and violence, and in the context of litigation tactics commonly employed by perpetrators in child custody and access cases. Quotations from parents involved in such cases illustrate why accurate assessment of mutual cliams requires complete information about social context and the analysis of patterns of domination, power and control in the relationship over time. Recent developments in Canadian law ought to enhance the ability of judges to take such evidence into account. The article aims to provide a lens through which to understand and assess such cases.     

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.     

THE BENEFITS AND RISKS OF CHILD CUSTODY EVALUATORS MAKING RECOMMENDATIONS TO THE COURT:

In their article, Tippins and Wittmann articulate a strong position against custody evaluators making specific custody recommendations to the court. This response will focus on my thoughts about their concepts and my belief that recommendations can be useful and appropriate some of the time, even though there may be significant problems with certain types of recommendations and problems with some evaluators.     

REJOINDER TO GARDNER'S "COMMENTARY ON KELLY AND JOHNSTON'S 'THE ALIENATED CHILD: A REFORMULATION OF PARENTAL ALIENATION SYNDROME'"

In this reply to Richard Gardner, we outline our points of disagreement with his formulation of parental alienation syndrome (PAS), showing that his focus on the alienating parent as the primary cause of children's negative attitudes and rejecting behavior toward the other parent is overly simplistic and not supported by findings from recent empirical research. It follows that we strongly object to Gardner's recommendations for legal and mental health interventions with alienated children as well as the use of the term PAS when referring to this problem.     

INTERNATIONAL PARENTAL CHILD ABDUCTION: WHY WE NEED TO EXPAND CUSTODY RIGHTS PROTECTED UNDER THE CHILD ABDUCTION CONVENTION

The Child Abduction Convention, an international treaty, protects custody rights internationally among its member states by providing a remedy of return in cases where a child was wrongfully removed in violation of a parent's custody right. There is no such remedy for the violation of a parent's access (or visitation) rights. A ne exeat clause in a child custody agreement restrains a custodial parent from removing a child from a predetermined jurisdiction (such as a particular country) and can be issued when there is a risk that the custodial parent might flee to another country with the child(ren). Currently there is a circuit split within the United States as to whether a ne exeat right coupled with the right of access should equal a protected custody right under the Convention. Most international courts protect the ne exeat right under the Convention; however some do not. A ne exeat right should convey a protected custody right for policy reasons. The beneficial implications of a ne exeat right creating a protected custody right under the Child Abduction Convention clearly outweigh the detriments. While there is no instant solution to the inconsistencies among various courts in interpreting the Child Abduction Conventions’ scope in regard to a ne exeat right, there are ways to resolve the problem. If consistency in judicial interpretation cannot be achieved, a movement needs to be initiated to create a protocol to the Child Abduction Convention to further explain the scope of custody rights and ne exeat rights under the Convention.     

PRIVATIZATION OF CHILD PROTECTIVE SERVICES

Florida is a state in flux in terms of its child protective services organization. The Department of Children and Families has suffered numerous failures in protecting children in its care. Publicity surrounding these defects have led to major overhauls in the agency itself, as well as a concerted effort to move forward toward privatization of virtually all services currently administered by the department. Many of the initial attempts at privatization have already failed; others have had to be revamped to allow for unforseen problems. It is appallingly true that Florida, like any other state with serious issues in child protective services, has an absolute obligation to search for the "miracle cure" for its ailments. But only serious attention to the mistakes of the past and the will to correct them will allow Florida to finally put its children first in its citizens' hearts and minds, where they belong.