Conducting Child Custody Evaluations

From Basic to Complex Issues

Philip M. Stahl

• Publisher: SAGE Publications, Inc
• Year: 2010
• ISBN:
  9781483343198
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

Covering the mental health expert's many roles as therapist, mediator, evaluator, consultant to attorneys, expert witness, and more, Philip M. Stahl's Conducting Child Custody Evaluations: From Basic to Complex Issues addresses key topics such as the best interests of the child, custody and time share, divorce and its impact on children, and children's developmental needs. From tackling the terror of testifying to critiquing your own child custody evaluations and avoiding bias inherent in this work, this practical and easy-to-read book offers comprehensive coverage vital to practitioners in this field.

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PART I

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Critical Professional and Ethical Issues

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1	Introduction to the Role, Ethics, and Professional Responsibility

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Child custody evaluations are time intensive, potentially intrusive to the family, expensive, and risk putting the children right into the middle of their parents’ conflicts. When ordered by the court to participate in an evaluation, parents are subjected to multiple interviews, perhaps psychological testing, and exposure of their conflicts to teachers, therapists, and other collateral professionals. Children are interviewed and observed in offices and often in their homes. This lengthy process will typically take 3 to 4 months to complete, will typically be expensive, and may yield a report that is both potentially insightful and potentially damaging to the family. With that in mind, a relevant question would be, “Why do courts order families to undergo child custody evaluations?”

In fact, there are numerous commentators in the professional literature who would argue that judges should not be sending families for child custody evaluations (see, e.g., Emery, Otto, & O’Donohue, 2005; R. Kelly & Ramsey, 2009; O’Donohue & Bradley, 1999). Parent groups have used the Internet to complain about child custody evaluators, judges, attorneys for children, Parent Coordinators, and others who work in the family law field. In the past 10 years, there has been a significant increase in licensing board complaints against mental health professionals who perform child custody evaluations and work as Parent Coordinators. This may lead to the relevant question, “Why would a mental health professional participate in and conduct a child custody evaluation?”

Additionally, many parents feel that an evaluation is intrusive and exposes the family to significant airing of the proverbial “dirty laundry.” As noted previously, evaluations are costly and can add many months to the court and divorce process. Parents worry about the impact of the evaluation on their children, and often worry that an evaluator will make recommendations that limit their custodial rights and interfere with their relationships with their children. A relevant question for parents would be, “Why would any parent request or participate in a child custody evaluation?”

The answer to these questions lies in understanding how parents and courts benefit from an evaluation.

How the Court Benefits From an Evaluation

Typically, a judge will order a child custody evaluation under a range of circumstances. In my experience, this can include those circumstances in which there are significant allegations such as drug and alcohol abuse, family violence, child abuse, significant mental health problems, and parental fitness. Oftentimes, a judge will have two parents in the courtroom who both appear to be good enough at parenting, and at other times, one or both parents appear to have significant problems. Increasingly, judges look to the mental health expert to assist in understanding complex psychological questions of attachment between the child and her parents, sibling relationships, and the developmental needs of children.

In a mobile society, one parent may wish to relocate with the children for a variety of reasons, such as employment, economics, new relationship opportunities, and more. In many jurisdictions, a judge will find it helpful to request a child custody evaluation to address the relevant psychological factors associated with the relocation question. My experience in California is that a judge will quite frequently request the assistance of an evaluator in a relocation case in order to provide information to the court about the relevant psychological issues described in the LaMusga decision (In re Marriage of LaMusga, 2004).

While judges are guided by the law in making decisions regarding the best interests of children, they may look to the neutrally appointed child custody evaluator to assist in understanding the complexity of the family dynamics and the relevant psychological factors that can lead to a determination of the child’s best interests. Ultimately, in many ways, the neutrally appointed child custody evaluator serves as a quasi-consultant to the judge, providing critical data about the family for a better understanding of the family dynamics and the needs of the children.

A key role for the child custody evaluator is to be helpful to judges. Evaluators help judges by providing data and analysis to understand complex family dynamics associated with best-interests factors in the law.

How the Family Benefits From an Evaluation

The majority of parents going through a divorce will reach an agreement on their own about the parenting plan. Such low- or medium-conflict parents will agree on important decisions about their child, such as where he will go to school, what extracurricular activities he will participate in, and what nonemergency medical procedures to consider (e.g., orthodontia). They will agree on a parenting plan that will delineate the times that their child is with his mother and the times that he is with his father. They may have used mediation or resolved these issues on their own. Obviously, these parents do not need an evaluation, nor would the court order one.

On the other hand, some families, perhaps as many as 20%, are high-conflict families. They cannot agree on the parenting plan, how to make decisions for their child, nor are they able to focus on their child’s needs because of their mutual differences. As noted earlier, with many of these families there are allegations of family violence, high conflict, significant mental health problems, concerns about the other parent’s new romantic partner, substance abuse, and the alienation or estrangement of children. The primary benefit of an evaluation to families in these circumstances is that the evaluation will provide an opportunity for parents to voice their concerns to an expert in child development and mental health so that they are truly heard by someone. Many parents going through the divorce process feel that no one, sometimes not even their attorney, hears them. Many parents believe that no one cares about their child. In court, they may have been given little, if any, time to speak to the judge, who is often overwhelmed with a busy calendar with many cases to be heard. A neutrally appointed child custody evaluator will spend considerable time with each parent trying to understand individual concerns and perceptions of their child’s needs. This can be comforting to parents who have a need to be heard about these concerns.

By listening to children, evaluators can also help identify when children are truly caught in the middle of a loyalty conflict between their parents and can describe the impact of that exposure to conflict. It is common for children’s voices to be absent in the courts in the United States, and participation in a child custody evaluation will help children voice their concerns, share their wishes, and explore their feelings. While the child custody evaluator is not serving in the role of a therapist, the evaluation process may be therapeutic to children going through the evaluation. If the evaluator finds that the child is experiencing significant problems, she can refer the child for therapy and help the parents understand their child’s developmental needs. In these ways, not only does the evaluator serve the opportunity to hear the child’s voice, but she can also be a child advocate, advocating to the court and to the parents to meet the child’s psychological and developmental needs.

A third potential benefit for the family comes from the fact that the same mental health expert is observing all family members. In the midst of a bitter divorce, therapeutic services are often fragmented, with each parent having his or her own therapist, attorney advocate, and sometimes even family friends become fragmented between parents. Many children are seeing their own therapist, as well. Each helping professional has a specific role, that is, to advocate for his or her respective clients’ psychological or legal needs. Such professionals do not have critical information about the other family members. While their advice might be helpful and appropriate to their client, it may not be in the children’s best interests. By having a neutrally appointed child custody evaluator listen to and observe all family members, talk to the relevant collateral witnesses on both sides, and consider everyone’s input before reaching conclusions about the children’s best interests, fragmentation disappears. If the evaluation is done correctly and thoroughly, all data collected and any recommendations offered will be addressed in a comprehensive manner for all concerned.

At the end of the evaluation process, when an evaluator writes a complete and comprehensive report, parents benefit from the report by learning about their child’s needs and how the parents can work together to meet those needs. The evaluation report can help parents focus on the child rather than on their conflicts with one another and be a teaching tool to help them learn ways to resolve their conflicts and serve their child’s needs. Furthermore, because a good evaluator will be up-to-date on current research in the field, the evaluator can help parents understand relevant issues such as overnights with their young child, the impact of conflict on children, the benefits of shared parenting in some circumstances, and the risks of shared parenting in other circumstances. This will enable the parents to be more effective as parents after the divorce.

Ultimately, an evaluation is most helpful to the family when the evaluator’s report and conclusions can help reduce conflict, help parents reach a settlement without litigation, and keep parents focused on their child’s needs and best interests. A well done evaluation may help parents recognize the need for solution and compromise and, while mediation was not successful prior to the evaluation, that settlement is much more likely after an evaluation. To the extent that settlement occurs, this will always benefit children, as it will allow for a reduction in conflict and provide an opportunity to move forward in a healthy way on behalf of the children.

Evaluators help families and children by providing useful information that can help the family settle the custody dispute without court intervention.

When Is an Evaluation Harmful?

Even with the preceding in mind, there are certainly times when an evaluation should not be performed. Certainly, if one or both parents are ambivalent about the divorce, marriage counseling may be much more appropriate. Second, except in those circumstances where the allegations are huge or when controlling domestic violence may preclude it, parents would always benefit from an effort at mediation before jumping into an evaluation. Research is clear (see, e.g., Emery, Sbarra, & Grover, 2005; J. Kelly, 1996) that parents are likely to have a greater sense of satisfaction and follow through positively when they have reached their own solution regarding their children. When mediation services are available, I almost always recommend that a family try mediation first, even in some circumstances in which there has been domestic violence.

Additionally, there may be times when one parent or the other will not cooperate with the evaluation. There may be times when, especially in a rural community with few experts, no one has the skill to provide a comprehensive child custody evaluation. At times, a child’s therapist may be asked for input into the custody and access plan. In my opinion, a child’s therapist should never provide input to the court about the parenting plan that is in a child’s best interests, though she may discuss with parents her thoughts about various custodial options. In all of those instances, caution must be taken before conducting the evaluation, making sure that ethical boundaries are maintained and that appropriate practice standards have been met. These will be discussed later in this chapter.

Who Is the Client/Consumer?

In my experience, child custody evaluations are almost always performed following a stipulation or court order identifying the particular mental health professional appointed to do the evaluation. Some evaluations are conducted by experts in private practice while others are conducted by experts in the public sector. Regardless of where one works, when appointed in this fashion, the child custody evaluator serves as an expert of the court. In California, for example, the evaluator is appointed as the court’s expert under Section 730 of the Evidence Code, which defines the role of experts so appointed. As a result of that court appointment, the expert is likely to have quasi-judicial immunity from lawsuits. The court order will typically delineate who is responsible for the evaluator’s fees, which are not going to be paid by health insurance because this evaluation is for a legal matter. Sometimes both parents share the cost of the evaluation equally, and at other times, there is a disproportionate sharing of costs, while in some instances, one parent pays the entire fee. The payor is not the client.

In my belief, the client is both the judge and the family. If the case goes to trial, the evaluator’s report is designed to be helpful to the judge in reaching a sound decision on behalf of the best interests of the children. However, it is also clear that the majority of cases that go to evaluation are settled after the evaluation. In an overburdened legal system, judges are certainly looking to the parents and their attorneys to resolve their dispute at the conclusion of an evaluation. I believe that the ethical duty of evaluators is to meet the needs of the family first and foremost, always focusing on the best interests of the child. As such, both the family and the judge serve as the consumer of the evaluation, with a focus always being on the best interests of the child. In that regard, no matter who is paying for the evaluation, in what context and for what reasons it is ordered, or whether the end result is a settlement or a trial, the children of divorce become the primary focus of the evaluation and their needs must be served first.

Practice Standards and Ethical Issues

In recent years there has been a shift in the thinking about child custody evaluation guidelines and standards (Kirkpatrick, 2004). The Association of Family and Conciliation Courts (AFCC; 2006) and the American Psychological Association (2009) have updated their previously published Model Standards of Practice for Child Custody Evaluation (AFCC) and Guidelines for Child Custody Evaluations (American Psychological Association). As stated in the Introduction to the AFCC Model Standards, “These Model Standards for Child Custody Evaluation are designed to promote good practice; to provide information to those who utilize the services of custody evaluators; and to increase public confidence in the work done by custody evaluators.” In addition, California Rule of Court 5.220 provides direction and guidance to evaluators in the courts of what to expect in the child custody evaluation process. The rationale for such Model Standards, Guidelines, and Court Rules is clear: to raise the bar and promote good practice by psychologists and other mental health professionals conducting evaluations, and to increase the likelihood of uniformity within the evaluation process. Kirkpatrick (2004) describes this baseline as the “floor,” not the “ceiling” for our work.

These Model Standards, Guidelines, and Rules of Court address issues such as evaluator qualifications, training and experience, proper procedures, ethical issues, bias, assessment techniques, and other critical issues for evaluators. They may define the scope of the evaluator’s work, discuss issues surrounding confidentiality and the lack thereof, clarify the importance of understanding the law and the court culture in one’s community, address issues in record-keeping and the disclosure of records, address the importance of informed consent, and focus on testimony and report writing. The Model Standards and the Guidelines are aspirational in nature. The Rules of Court in California, on the other hand, are specific and have language that the evaluator “shall” comply with those rules.

For example, while the AFCC Model Standards suggest that evaluators have at least a master’s degree in a mental health field that includes formal education and training, and recommend ongoing continuing education in a range of areas relevant to family law, California Rule 5.220 requires an evaluator to have that minimum master’s degree, be licensed by the state, and have an initial minimum 40 hours of general continuing education and 16 hours of domestic violence continuing education before conducting any evaluations, plus an additional 8 hours of general continuing education and 4 hours of domestic violence continuing education annually in order to continue doing child custody evaluations. California Rule of Court 5.225 addresses these training and experience requirements directly. It is a requirement of the California Rule that an evaluator sign a document under penalty of perjury that he or she has met the training and experience requirements of the Rule before conducting an evaluation.

The purpose of the California Rule is to ensure that all evaluators have the requisite training to conduct these evaluations. It is critical to know the education and training requirements in your particular...

Table of contents

• Cover Page
• Dedication
• Title
• Copyright
• Contents
• Preface
• A Note on Language Used in This Book
• Acknowledgments
• Part I. Critical Professional and Ethical Issues
• Part II. Conducting the Child Custody Evaluation
• Part III. Complex Issues to Be Evaluated
• Part IV. Other Critical Issues
• Appendix A: Sample Court Order Appointing Mental Health Professional
• Appendix B: Sample Custody Evaluation Informed Consent and Retainer Agreement
• Appendix C: Sample Custody Evaluation Face Sheet
• Appendix D: Sample List of Questions to Ask Children
• Appendix E: Sample List of Questions to Ask Parents
• Appendix F: Sample Alienation Analysis and Recommendations
• Appendix G: Sample Relocation Analysis and Recommendations
• Appendix H: Recommended Reading
• References
• Name Index
• Subject Index
• About the Author