The Scientific Basis of Child Custody Decisions E-Book

• Herausgeber: John Wiley & Sons
• Kategorie: Geisteswissenschaft
• Sprache: Englisch

Seitenzahl: 1062

Veröffentlichungsjahr: 2009

Beschreibung

The legal system requires mental health professionals to provide research summaries to support their evaluations in child custody cases. Contributions from leading developmental researchers, legal professionals, and clinicians describe how scientific evidence is properly used in court. Timely and current, this book helps evaluators access the best information to fulfill their obligations to their clients and the court. The Second Edition adds chapters on family observation, parental alienation, and sexual abuse. Forensic psychologists, family lawyers, and judges will be equipped with the most current information to aid in custody decisions.

Leseprobe

Table of Contents

Title Page

Copyright Page

Preface

Preface to the Second Edition

Introduction

References

Contributors

CHAPTER 1 - From Empirical Findings to Custody Evaluations

FACTS

THE EVALUATION OF STUDIES

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eISBN : 978-0-470-45933-1

1. Custody of children-United States. 2. Forensic psychiatry-United States. 3. Forensic psychology-United States. 4. Social work with children. 5. Child psychiatry. 6. Child psychology. I. Galatzer-Levy, Robert M., 1944- II. Kraus, Louis. KF547. A75S38 2009 346.7301’73-dc22 200900835

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Preface

THIS BOOK WAS born in a courtroom, but it is meant for a larger world. While listening to a particularly dreadful piece of expert testimony—that the “primary intrauterine bond of mother and infant” entailed that a 4-year-old should be returned to the care of her intermittently psychotic, substance addicted, and abusive biological mother with whom she had almost no relationship—it occurred to one of us that although he wished otherwise, none of the players in this drama, expert, lawyers, or judge, had a solid base from which to consider the testimony. As clinicians and expert witnesses over the years, we have seen how difficult it is for both legal and mental health professionals to address the “best interests of the child.” Lawyers and judges are often ignorant of basic psychological concepts, or worse, have latched onto a few ideas with which they were personally sympathetic. This creates situations in which the trial process functions poorly. Lawyers’ lack of clarity about the testimony makes for muddled direct and cross-examinations. Judges have difficulty understanding and evaluating the testimony. Divorcing families usually have limited resources, putting expert witnesses’ and lawyers’ time at a premium so that custody decisions are made without full benefit of the information available about children’s best interests.

Some judges and jurisdictions try to solve this problem by relying heavily on experts and agencies trusted by the court, including court-sponsored social service agencies. Difficulties arise in these situations because the opinions of these mental health professionals may be subject to little effective review and yet determinative of cases’ outcome. Unfortunate situations can result when inadequately trained mental health professionals or individuals with idiosyncratic viewpoints essentially assume the judge’s role in all but the most vigorously litigated cases.

Mental health professionals involved in custody determinations have often not thought through the difference between evaluations done in a forensic context and those appropriate for clinical work. Often mental health professionals are ill-prepared to contribute to the legal process. Accustomed to treating mentally ill or distressed people, they commonly collect and formulate information in a way that is appropriate for that purpose, information that is often quite different from that required in forensic work. For example, although no rational person would try to mislead someone from whom he or she sought treatment, parties to a forensic evaluation can quite reasonably wish to do so. The level of confidence with which a treater makes recommendations need reach a conviction only that the recommendation is the best choice available. Even that recommendation is subject to correction and reevaluation in the light of its effects as observed during the course of treatment. In contrast, expert opinions are expected to be highly reliable and defensible against close examination and do not carry with them the expectation that they can be corrected as a result of subsequent experience with the client. The questions that treaters address are typically different from those raised in a forensic context. In most instances, the primary question when treating a patient is what form of therapeutic intervention is most likely to aid him or her. This is a different type of question from those raised in custody evaluations, which concern the impact of various living arrangements on the child within the context of the governing law. The mental health professional who does not maintain a serious interest in these issues is unlikely to have kept up with the explosion in research concerning parenting, divorce, and children’s developmental needs.

The end result of all these factors is that the vast amount of information gathered through research in child development has less impact on custody and visitation decisions than it should. In that courtroom many years ago it became clear that all those concerned, especially the child whose fate was being litigated, would benefit from a reliable reference that could clarify thinking about the psychological issues in the case. Such a book would have to be accessible, if at times with a little work, to both legal and mental health professionals. It would need to not only reflect the best current thinking on topics affecting custody and visitation, but also provide information about the credibility of those current views. It would need to focus on the issues that courts address, and although it could not possibly speak to every situation that might arise, it should at least discuss some of the common, particularly troublesome situations confronted in custody decisions. Finally, it should be a book about what mental health professionals and knowledge of behavioral science can contribute to the decisions, with legal issues examined insofar as they impact those contributions.

We intend this book to be of use not only in situations involving litigation but also in the much more common situation where families are able to decide on custody and visitation arrangements for themselves. Families and their advisors should be guided by what is known about the impact of arrangements on children. The material presented here is applicable to any child involved in divorce.

Preface to the Second Edition

THE DECADE SINCE the publication of the first edition of this book has witnessed a sea change in custody evaluations and decisions. Several factors—legal, professional, and social—have converged, resulting in a move toward more rational and empirically based arrangements for children of divorce.

Generally higher standards for expert testimony followed in the wake of the Daubert decision. Although various forms of “junk science” are still far too common in the legal system, especially in areas involving psychology, legal professionals are ever more demanding that the credibility of technical and scientific expertise stand up to careful scrutiny. The time when experts could safely opine on all sorts of matters based on clinical experience or un-demonstrated theories is, thankfully, rapidly fading. Matrimonial law is increasingly recognized as a significant branch of law, and professional organizations for matrimonial lawyers have become increasingly sophisticated. Courts and judges have become increasingly specialized and appreciative that different sorts of divorce cases may require distinct legal and administrative processes. Ever since the founding of the juvenile court in Chicago at the beginning of the twentieth century legal and mental health professionals have recognized that a system designed to deal primarily with property and crime was a blunt instrument with which to deal with the complex subtleties of human relationships. However, attempts to model courts on social service agencies risked depriving people of the protections of due process in matters of the greatest importance to them, such as custody of their children. Legal professionals have become increasingly skillful at differentiating cases that are best approached through various forms of alternative dispute resolution from those that require the rigor of fledged legal proceedings. Together these changes have resulted in higher expectations from the courts regarding the credibility and relevance of expert opinions.

This same period has witnessed the increased professionalization of the forensic mental health professions. Until recently almost all mental health experts had primarily clinical training and learned about forensic issues either through independent study or periods of work in forensic settings. Now there are a variety of systematic training programs preparing mental health professionals for forensic roles. Texts on forensic psychology and psychiatry have rather rapidly shifted from compendiums of personal opinions and observations to critical reviews of empirical knowledge and relevant law. Especially in the area of child custody journals in the field such as Family Court Review and the recently founded Journal of Child Custody have resulted in the emergence of high-quality research literature about custody issues.

The changing nature of marriage and parenting in our society has also contributed to increased sophistication in custody decisions. The twentieth century opened with the sure knowledge that children were their father’s possessions. For decades after the Second World War the assumption that women are caretakers dominated custody decisions. The vastly increasing divorced population and shifting gender roles meant not only that these roles changed but that the roles consistent with gender were much more diverse than they had been. Large segments of society demanded that courts operate without stereotyping assumptions. Joint custody and extensive visitation arrangements became the norm as both fathers and mothers expected to remain involved with their children after the divorce. Courts continue to struggle with the recognition that families may have very different configurations than the so-called nuclear family and that these arrangements may be of great value to children. Society’s increasingly sophisticated vision of the possibilities for relationships has forced the courts and mental health professionals to form more sophisticated and diverse views of custody arrangements that benefit children.

We think that the combination of these forces is moving the field in the direction we very much wanted to see it go when we first conceptualized this book. We are now in the happy position of being able to present a stronger foundation for child custody decisions than we could have a decade ago, as we think the Introduction will show. We hope that our book made some contribution to the trend we are describing and that this new edition will continue that contribution.

Robert M. Galatzer-Levy, MS, MD Louis Kraus, MD Jeanne Galatzer-Levy, MS July 9, 2008

Introduction

ROBERT M. GALATZER-LEVY

DIVORCE IMPACTS VAST numbers of children. In the United States more than a million children’s parents divorce each year. An estimated 40% to 50% of American children before age 18 experience their parents’ divorce (Glick, 1988, 1990). Although experts disagree about the effects of divorce on children, research supports common sense that for many children their parents’ divorce presents a serious challenge. Today nearly everyone agrees that, within the limits imposed by the decision to divorce and the resources available to the family, arrangements should be made that are in the child’s best interest.

The problem is to determine what those best interests are both generally and for particular children. Some of these decisions involve values, convictions about what constitutes a good life and the aims of child rearing. These questions can be addressed only through ethical analysis and public opinion as reflected in legislation and judicial decisions. In many areas consensus on these matters is easily reached. For example, few would argue that irrational anxiety or development in the direction of criminality are good for children. In other areas consensus is less clear because of the diversity of views in our society; for example, some people believe that it is of great importance that children be raised with a strong religious sensibility, whereas others count this of little importance or even regard it as undesirable. Although many values about children’s development are so widely shared that they do not need to be spelled out, it is still important to recognize that discussions of children’s interests are implicitly embedded in a context of values and that some questions about children’s best interests can be addressed only from within that context.

However, another group of questions are matters of fact. They concern how particular arrangements are likely to affect children: whether, for example, a child of a given age and background will be able to maintain a close relationship to a parent under a particular visitation schedule. These instrumental questions are subject to empirical investigation. Rarely, though increasingly frequently, researchers have explored the question directly, but very often a body of empirical information is available about children’s development that allows strong inferences about the likely impact of an arrangement on a child. For example, it might be proposed that a 1-year-old child spend alternating weeks in the care of each parent. It is unlikely that an experiment with precisely these parameters would be performed, but extensive research on children’s capacities to maintain relationships with caregivers and the effects on development of failing to do so strongly suggests that this would be a very undesirable arrangement in terms of the child’s psychological health. Our hope is that reliable information about children’s needs and development can increasingly be brought to bear on decisions about living arrangements for children of divorce.

This book is intended to serve the needs of legal and mental health professionals involved in custody decisions about children of divorce. We believe that these decisions should be informed by the best available knowledge regarding their likely impact on children. Although several recent volumes have addressed the performance of custody evaluations and providing expert testimony about them (Ackerman, 2006; Ackerman & Kane, 2005; Bricklin, Elliot, & Halbert, 1995; Gardner, 1989; Gould, 2006; Mart, 2007; Rohrbaugh, 2007; Schutz, Dixon, & Lindenberger, 1989; Stahl, 1994, 1999; Woody, 2000) and there are many scholarly works about child development generally, we could not find a single volume in which readers could locate authoritative statements about the basis on which custody decisions can be made that included discussions of the reliability of those statements.

When a couple separates or divorces, decisions must be made about the children’s custody and visitation. Because society recognizes its interest in these arrangements, the family immediately becomes involved with the legal system, yet most of these decisions are made by the divorcing couple with no input from professionals of any kind. Other couples seek the counsel of mental health professionals, pediatricians, attorneys, and clergy to come to an agreeable arrangement. In approximately 10% of divorces involving children, parents are unable to agree about custody and visitation arrangements and litigation is initiated. The resulting process of discovery, mandated mediation, and evaluation has been estimated to result in agreed resolution of approximately 90% of these disputes. Overall, it has thus been estimated that only 1% of custody decisions are the result of trials. However, this figure is misleading with regard to the impact of the courts on custody arrangements. The pattern of actual decisions reached by the courts and legislatures on custody matters has a profound effect on the agreements that parents reach between themselves. For many years the “tender years doctrine” was widely applied by courts. It involved the presumption that young children were best cared for by their mother. As this doctrine lost sway, largely through legislation, fathers who previously believed it highly unlikely that they could gain custody of their children increasingly sought custody or a major role in their young children’s lives. Thus, in addition to affecting custody arrangements that actually go to trial, judicial decisions have a far-reaching impact on the lives of many children of divorce. The ever present potential for litigation inevitably affects all actors in custody decisions so that the shadow of these cases is much longer than the numbers suggest.

The process by which custody decisions are reached is unusual in that the individual most affected by the decision, the child, is rarely a party to the litigation. Additionally custody and visitation arrangements are most often made as part of an overall divorce settlement so that, especially when the parties settle between themselves, considerations other than the child’s best interests are likely to play an important role in the actual decision. For example, additional time with the child may be traded for increased financial support.

Mental health professionals who hope to contribute to custody arrangements must keep in mind both the intrinsic complexity of the issues involved and the context in which the contribution is made. Because these decisions often require specific information about issues peculiar to divorce and because they require the integration of multiple viewpoints more is needed than the application of general child developmental and parenting principles. The divorcing family has distinct qualities and its members are subject to forces that may not have been considered in investigations of broader developmental issues.

References

Ackerman, M. (2006). Clinician’s guide to child custody evaluations (3rd ed.). New York: Wiley.

Ackerman, M., & Ackerman, M. (1997). Custody evaluations practices: A survey of experienced professionals (revisited). Professional Psychology: Research and Practice, 28, 137-145.

Ackerman, M., & Ackerman, M. (2006). Custody evaluations practices: A survey of experienced professionals (revisited). Professional Psychology: Research and Practice, 28, 137-145.

Ackerman, M., & Kane, A. (2005). Psychological experts in divorce actions (4th ed.). New York: Aspen.

Bacon, F. (1620). Novum organum. T. Fowler, Ed., (2nd ed). Oxford: Oxford University Press., 1889.

Bricklin, B., Elliot, G., & Halbert, M. (1995). The custody evaluation handbook: Research based solutions and applications. New York: Brunner/Mazel.

Brodsky, S. (1991). Testifying in court: Guidelines and maxims for the expert witness. Washington, DC: American Psychological Association.

Bryant, B. (1985). The neighborhood walk: Sources of support in middle childhood. Monographs of the Society for Research in Child Development, 50(3).

Gardner, R. (1987). Parental alienation syndrome and the differentiation between fabricated and genuine child sex abuse allegations. Cresskill, NJ: Creative Therapeutics.

Gardner, R. (1989). Family evaluation in child custody mediation, arbitration, and litigation (Rev. ed.). Cresskill, NJ: Creative Therapeutics.

Gould, J. (2006). Conducting scientifically crafted child custody evaluations. Sarasota, FL: Professional Resource Press.

Grisso, T. (1990). Evolving guidelines for divorce/custody evaluations. Family and Conciliation Courts Review, 28, 35-41.

Groth-Marnat, G. (1997). Handbook of psychological assessment. New York: Wiley.

Gutheil, T. (1998). The psychiatrist as expert witness. Washington, DC: American Psychiatric Press.

Heilbrun, K. (1995). Child custody evaluation: Critically assessing mental health experts and psychological tests. Family Law Quarterly, 29, 63-78.

Huber, P. (1993). Galileo’s revenge. New York: Basic Books.

Keilin, W., & Bloom, L. (1986). Child custody evaluation practices: A survey of experienced professionals. Professional Psychology: Research and Practice, 17, 338-346.

LaFortune, K., & Carpenter, B. (1998). Custody evaluations: A survey of mental health professionals. Behavioral Sciences and the Law, 16, 207-224.

Lubet, S. (1999). Expert testimony: A guide for expert witnesses and the lawyers who examine them. Chicago: American Bar Association.

Mart, E. (2007). Issue focused forensic child custody assessment. Sarasota, FL: Professional Resource Press.

Melton, G., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York: Guilford Press.

Rohrbaugh, J. (2007). A comprehensive guide to child custody evaluations: Mental health and legal perspectives. New York: Springer.

Schutz, B., Dixon, E., & Lindenberger, J. (1989). Solomon’s sword: A practical guide to conducting child custody evaluations. San Francisco: Jossey-Bass.

Stahl, P. (1994). Child custody evaluations: A comprehensive guide. Thousand Oaks, CA: Sage.

Stahl, P. (1999). Complex issues in child custody evaluations. Thousand Oaks, CA: Sage.

Strasburg and Gutheil & Brodsky A., (1997). On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, 154(4), 448-456.

Contributors

Carrie Barker, BA School for Social Work Smith College Northampton, Massachusetts

Brenda Bursch, PhD Professor, Clinical Psychiatry and Biobehavioral Sciences, Pediatrics Clinical Director, Pediatric Psychiatry Consultation Liason David Geffen School of Medicine at UCLA Los Angeles, California

Bertram J. Cohler, PhD William Rainey Harper Professor Department of Comparative Human Development University of Chicago Chicago, Illinois

Mary Connell, EdD Independent Practice Fort Worth, Texas

Robin M. Deutsch Director of Forensic Services of the Children and the Law Program Department of Psychiatry Massachusetts General Hospital Assistant Professor of Psychology Harvard Medical School

Leslie M. Drozd, PhD Editor, Journal of Child Custody Psychologist, Independent Practice Newport Beach, California

Susan M. Fisher, MD Associate Professor, Department of Comparative Human Development Clinical Professor, Psychiatry University of Chicago Faculty, Chicago Institute for Psychoanalysis Chicago, Illinois

James R. Flens, PsyD, ABPP Clinical and Forensic psychologist, Private Practice Brandon, Florida

Robert M. Galatzer-Levy, MS, MD Lecturer in Psychiatry, University of Chicago Faculty, Chicago Institute for Psychoanalysis Clinical and Forensic psychiatrist and psychoanalyst, Private Practice Chicago, Illinois

Jeanne Galatzer-Levy, MS Science and Social Science Editor Evanston, Illinois

Livia L. Gilstrap, PhD Assistant Professor, Department of Psychology University of Colorado Colorado Springs, Colorado

Jonathan Gould, PhD, ABPP Clinical and Forensic Psychologist, Private Practice Charlotte, North Carolina

Michael J. Jenuwine Associate Clinical Professor of Law Associate Professor of Psychology University of Notre Dame Notre Dame, Indiana

Joan B. Kelly Consultant and Lecturer Corte Madera, California

Margaret Bull Kovera, PhD Professor, Psychology John Jay College of Criminal Justice City University of New York New York City

Louis Kraus, MD Chief, Section of Child and Adolescent Psychiatry Rush University Medical Center Chicago, Illinois

Kathryn Kuehnle, PhD Florida Mental Health Institute Department of Mental Health Law and Policy University of South Florida Tampa, Florida

Michael E. Lamb, PhD Department of Social and Developmental Psychology University of Cambridge Cambridge, United Kingdom

Anita Lampel, PhD Diplomate, Clinical Psychology Private Practice

David A. Martindale, PhD, ABPP Forensic Psychologist in Private Practice New Jersey

Bradley D. McAuliff, PhD, JD Department of Psychology California State University Northridge, California

Charlotte J. Patterson, PhD Department of Psychology University of Virginia Charlottesville, Virginia

Kayla Pope, JD, MD Child and Adolescent Psychiatry Research Fellow Children’s National Medical Center/NIMH Washington, DC

Marsha Kline Pruett, PhD, MSL Maconda Brown O’Connor Professor Smith College School for Social Work Northampton, Massachusetts

Robin Shapiro, MD Child, Adolescent, and Adult Psychiatry Private Practice Chicago, Illinois

Sarghi Sharma Child, Adolescent, and Adult Psychiatry Forensic Psychiatry Private Practice Galveston, Texas

Norman M. Sheresky Sheresky, Aronson, Mayefsky & Sloan, LLP Matrimonial and Family Law New York City

Christopher Thomas, MD Child and Adolescent Psychiatry University of Texas Medical Branch Galveston, Texas

CHAPTER 1

From Empirical Findings to Custody Evaluations

ROBERT M. GALATZER-LEVY, JONATHAN GOULD, and DAVID MARTINDALE

EVERYONE WORKING IN the area of child custody agrees that these decisions should be based on credible information. In this chapter, we describe a framework for evaluating the significance of these findings. Expert custody evaluators generally, though often informally, proceed through a three-stage process in forming opinions in custody matters:

1. Based on their knowledge of the kinds of facts that are likely to be relevant to the decision, they collect data about the particular situation.

2. Using previous knowledge and further research, they refer to studies that may be relevant to the facts they find, assess the pertinence of the studies to the situation, and apply their findings to the facts at hand.

3. Weighing the relative importance of these facts, they attempt to integrate the resulting conclusions into an overall scientifically reliable recommendation.

Often the evaluator will not carry out these steps in sequence, or the process may loop back on itself. For example, on reviewing the pertinent scientific literature, the evaluator may see the need to gather additional facts before making a recommendation. In developing an opinion, evaluators commonly go through several iterations of this process. In practice, the care with which data about custody matters is gathered varies greatly. Many evaluators use their training and an unsystematic reading of the scientific literature as their sole source of information about the state of research in the matters about which they give opinions; their process of reaching an opinion is incompletely thought through. Legal professionals are often uncertain about how to assess the statements of behavioral science experts in these matters. We describe several considerations that can lead to more credible opinions and more meaningful assessment of experts’ statements.

Currently, the legal criteria for using scientific expert opinion are in flux. Roughly speaking, the courts appear to be moving from a sociologically based view of truth (Truth is what experts in the field believe) toward a method-based view (Truth is what is discovered through the appropriate application of scientific research methods). This shift reflects an increasing unwillingness in our society to accept statements as true simply on the authority of credentialed experts. Most people familiar with the field would heartily endorse this move. Despite their limitation, scientifically based opinions are more likely to provide pertinent information to decision makers and information that is more easily evaluated than opinions with other bases, such as personal experience. Where possible, we want to use scientifically based opinions to inform decisions. At the same time it is important to recognize that the complexity of human psychological life entails that custody decisions often must be made in situations that do not exactly fit with available research. In these cases it is particularly important that evaluators neither leave the court without assistance in understanding that complexity nor claim levels of certainty that they do not have.

Evaluating the merit of scientific evidence places tremendous demands on the courts. The boundaries of adequate scientific method generally, but especially in disciplines that study human behavior, are the subject of intense dispute among behavioral scientists and philosophers of science. Even when there is reasonable agreement about these boundaries, technically challenging questions arise in assessing research studies. These questions are often difficult for people with years of training in methodology to resolve. Attempts to resolve them in a legal context demand much of the courts.

The main difference between scientific and other forms of knowledge is that scientific knowledge is always accompanied by an assessment of its own credibility. Each step in a scientifically conducted study is at least potentially subject to open scrutiny and evaluations. The question of the truth of the statement always remains open and subject to test. A typical scientific research report includes a section on materials and methods that describes how the reported data were collected and the means used for analysis. It does so in such a fashion that a reader could, at least potentially, replicate the research. The report also includes specific reasoning that shows how these data are related to any conclusion drawn and an indication of the extent to which alternative possibilities have been assessed and the likelihood of their being true. Thus, by their very nature scientific opinions are never certain, and their limitations and defects should be made clear.

Although scientists have elaborate methods for assessing the credibility of scientifically based statements, no particular method is inherently necessary for an investigation to be scientific. In studying human behavior, many investigators find statistical methods extremely informative. However, when treated as a sort of magical ritual to make an investigation appear to be scientific, statistics can provide a false impression of the status of the investigator’s findings (Cohen, 1990; Salsburg, 1985). Nonquantitative studies have yielded some of the most useful information about human behavior and psychological function, whereas some quantitative studies, despite elaborate statistical trappings, are of little use. In the study of people, a trade-off commonly occurs between “extensive” and “intensive” study (Chassan, 1979). To reach statistically valid conclusions, many subjects are usually necessary. The richer the matter studied (in effect, the more variables studied), the more subjects are needed. However, studying many subjects in depth is difficult and time consuming. The following example displays this contrast.

In studying the long-term effects of divorce Wallerstein (e.g., Wallerstein & Johnston, 1990) and McLanahan and Sandefur (1994) used distinctly different methods that provide distinctly different results. Wallerstein studied a small number of subjects in depth over many years using an open-ended interview technique. Her studies provide clear, rich pictures of some of the common psychological configurations seen in children of divorce, with particularly good insight into their subjective experience. They do not, however, tell us how common these configurations are, to what extent they result from interacting aspects of the subjects’ lives, including the historical and demographic peculiarities of the sample studied, or the extent to which the subjects differed from other people like themselves. McLanahan and Sandefur based their studies on survey data collected by others. These surveys largely explored easily quantified aspects of the child’s situation such as family income and years of school completed. They involved very many subjects and systematically compared the subjects with individuals who had not been involved in divorce or who had lost parents in other ways. At the price of a much less rich picture of the children’s situation these authors provide reliable, quantitative information about the impact of divorce. Both types of research are scientific in the sense that they are clear about the means by which their data was collected and the logic that ties their conclusions to those data. Each has advantages and disadvantages: The Wallerstein studies provide the kind of richness but not the level of certainty or generalizability we would like; the McLanahan and Sandefur study is clear and convincing but does not reflect the psychological depth that most of us would want in reaching conclusions about children’s well-being. In this instance, the studies complement one another in the sense of looking at matters from different views and coming to compatible conclusions.

In the following material, we explore how custody evaluators collect information about specific cases, how they can assess literature on the subject and its applicability to the particular case, how they form a framework for thinking about the relative importance of the information obtained through these processes, and how they deal with problems such as potential bias.

FACTS

In making custody assessments, mental health professionals make observations and collect reports from numerous sources. These provide a set of facts that can be further processed. Decisions about which facts to collect and what credence to give them are of great importance.

The information an evaluator needs will depend on the questions to be answered. Too frequently, custody evaluators fail to focus on the specific issues pertinent to the situation and develop conclusions that go beyond or are irrelevant to the questions asked. They often collect both too much and too little information. Failure to gather pertinent information may leave the examiner ignorant of significant aspects of the situation. Irrelevant information can sway both the evaluator and the trier of fact in ways inconsistent with the goals of the evaluation. When working in a legal context, evaluators should develop a clear picture of the governing law to address the issues in the case. Many jurisdictions include specific issues that the court must consider in making decisions. For evaluators to be helpful in the decision process they must collect information pertinent to these questions. Many states’ statutes specify that the judge must consider the residential custodial parent’s capacity to support a relationship with the noncustodial parent in deciding with whom the youngster should stay. Some experts in child custody do not agree that this should be a central consideration (Goldstein, Freud, & Solnit, 1975). However, whatever opinions examiners may have about the law, they impede the judicial process when they fail to address the issues the court must address. Child custody experts have much to contribute to public policy, but the child custody evaluation is not the place to try to transform the law.

Most custody decisions do not depend per se on the general psychological health of the parents but do depend, in part, on the impact of the parents’ psychological functioning on the child. Many mental health professionals, however, approach custody evaluations as they would the diagnostic assessment of a patient. The implications of the resulting diagnosis is often obscure in its meaning for the parent’s interactions with the child. Nonetheless, the presence of a serious-sounding diagnosis or test finding may sway the trier of fact or derail the focus of the evaluation. This is particularly problematic with regard to psychological test reports. Although the reports themselves are usually carefully worded to indicate that the subject shows a pattern of responses consistent with some condition or commonly observed among individuals with a particular condition, the inexperienced reader is likely to finish reading the report with a sense that the subject suffers from many and severe psychological disturbances.

The way facts are collected often profoundly affects their content and significance. The information collected in custody evaluations can be profoundly shaped by the collection process. For example, an interviewer who is perceived as sympathetic may be told many things that an apparently unfriendly interviewer is not told. Differentiating between the factors that substantially influence the data collection and those that do not can be difficult. This is partly because the subject’s response to the interviewer may be so idiosyncratic that the interviewer is unaware of it (e.g., the interviewer may remind the subject of a pleasant or unpleasant person the subject has known). These problems are particularly marked in interviewing children, where such factors as the child’s desire to please the interviewer or fears of parental disapproval may greatly shift the information provided (Ceci & Bruck, 1995). The greatest danger occurs when the evaluator is unaware of the factors in the interview or testing situation that shape the information received. Although this hazard has been particularly well studied with regard to interviews about abuse allegations, interviewers are at constant risk of suggesting “correct” answers to the questions through responses such as approving remarks, gestures, and interested further questions when the interviewee responds in a certain fashion.

Because the attitudes of the interviewer and the intentions of the interviewee are so different depending on whether the interviewer is performing as an evaluator or a therapist, these roles should not overlap (Greenberg & Daniel, 1997). In talking to a therapist, it is in the client’s best interest to provide as full and accurate a picture as possible of the situation; in talking to an evaluator it is in the client’s best interest to provide a picture that will lead the evaluator to concur with the client’s opinions. The way an interviewer listens to the interviewee depends on an assessment of the interviewee’s intentions. This distinction is also important because most custody evaluators were trained primarily as clinicians. It is difficult enough for them to keep in mind that the underlying intentions of litigants are different from those of patients without the further confusion that results from trying to fill more than one role.

In a forensic situation most subjects are highly motivated to have their point of view prevail. They are likely therefore to use whatever means they think will be effective to convince the evaluator of the merits of their own position. More or less subtle forms of dishonesty are common in custody evaluations. These range from overt lies to significant omissions to enhance presentation of the subject’s point of view. Attempts to form alliances with the subject in the interest of discovering what is best for the child sometimes help minimize the consequences of such tendencies. However, the fact that custody is being litigated is in itself an indication that the parents have been unable to lay out facts dispassionately and agree on conclusions. Especially in so emotionally fraught a matter as the custody of one’s children, it is rare that a litigant is willing or able to forgo efforts to achieve their desired result in favor of providing the evaluator with objective information. Evaluators should proceed on the basis that the information being provided is intended to influence them rather than to provide as accurate a picture as possible of the situation. When interviewers take on more than one role, they are likely to become confused about which role they occupy at a given time. The therapist’s goal is often to communicate support and understanding to the client, which will aid the client in overcoming some difficulty. Evaluators have no such intention and are, in fact, appropriately skeptical that the information being given has any purpose other than persuasion. The vigorous questioning that may be appropriate in an evaluation and the use of collateral sources of information used by evaluators are rarely appropriate for the therapeutic situation. It is generally not possible to be both a good therapist and a good evaluator. For this reason, all guidelines for custody evaluators recommend avoiding a dual role (Ackerman, 1995). (For a discussion of the numerous other reasons to avoid being both therapist and evaluator at the same time, see Strasburger, Gutheil, & Brodsky, 1997.)

As with other matters, a scientific attitude in collecting facts is not characterized by the search for absolute certainty but rather in careful attention to possible sources of error and their correction. To this end, evaluators note the apparent credibility of sources of information, including the motives an interviewee may have for distorting information; the manner in which the information is presented; knowledge of common forms of distortion, including inaccuracies of memory; psychological test results that may pertain to credibility; and how consistent the information is both internally and with other sources of information. Some studies show that mental health clinicians are not particularly good judges of the veracity of the reports they receive (Ekman, 1992). Some of these studies are flawed in that they either placed the clinician in a trick position where he or she had little reason to anticipate that anyone would try to be less than honest or the clinician was given information of a type different from that ordinarily used by clinicians in making judgments of this kind. Methods are available to increase the clinician’s detection of deceit (Ekman, 1992). Still, the clinical assessment of credibility remains significantly imperfect, and clinicians cannot claim to be better at assessing truthfulness than other individuals based on research. Where significant facts in a case are controversial, as when one of the litigants is accused of physical violence, the court, with its capacity to gather sworn testimony subjected to cross-examination and to assess evidence, is often in a far better position than the evaluator to determine the truth of various claims. In some jurisdictions the evaluator may ask the court to make a determination of the pertinent facts. When this is not possible evaluators may state how their opinions would be affected by various fact scenarios.

Human memory and perception are more fallible then most of us would like to think. When collecting information from many sources, it is essential to remember that distortions are common and not necessarily the result of intentional deception (Schachter, 2001). Once people frame a view of a matter they are likely to selectively perceive and recall events in a fashion that supports their preconceptions. For this reason, evaluators should, where practical, utilize collateral sources of information (Dietz, 1996) and weigh conflicting descriptions of events. Evaluators themselves may forget or misperceive aspects of a situation. The more carefully, systematically, and contemporaneously events are recorded, the less likely examiners are to introduce significant distortions into situations.1 In addition to using ordinary thoroughness, many examiners follow comprehensive checklists when making observations during interviews and examinations to ensure that pertinent matters are recorded. Structured interviews serve a similar function. These guides have the advantage that the examiner is likely to observe and record items systematically. They have the disadvantage that they may discourage pertinent open-ended exploration and the noting of observations that do not fit within the preassigned format.

When collecting information and making observations that are highly complex or available only once, recording the information may be useful. Many examiners have discovered the value of videotaping or audio taping at least portions of the evaluation. Sometimes significant elements of interpersonal interactions between parent and child during an evaluation become clear only through the retrospective evaluation of recorded interactions.

An experienced examiner observed the interaction between a mother and her 6-year-old child, who had been removed from her care because of neglect associated with the mother’s depression and substance abuse. Although the examiner felt ill at ease observing the interaction, the mother appeared animated, interactive, and concerned for the child’s interests, as manifested by her encouraging play with several toys that she knew he enjoyed. When the examiner reviewed a videotape of the session, the source of discomfort became clear. Over the 45-minute session, the mother never once responded to something the child initiated. In fact, when the child introduced a new topic, the mother continued speaking about the matter she had been focused on before the youngster interrupted, giving no indication that she had heard what he had said. Even had the examiner been astute enough to pick up this pattern during the interview, without the videotape it would have been difficult to thoroughly and rigorously document it.

Studies of the suggestibility of children show that youngsters’ reports may be profoundly influenced by subtle suggestion in previous and current interviews (Ceci & Bruck, 1995). Although this problem has been particularly noted in regard to sexual abuse allegations, it is important in any situation in which youngsters’ historical reports are important. Simply having been asked about an event may constitute the basis for the later “recollection” of the occurrence. For this reason, it is extremely useful to retain videotapes of sessions in which children report historical events. Not only do such tapes make it more possible to assess the extent to which the examiner unwittingly employed various means that are known to produce distorted reports, but they also make it possible to document situations in which the subject incorporated a question as a memory.

Selective recording may be challenged on cross-examination, where the question will naturally arise as to why the entire session was not recorded or with an implication of bias as to what was recorded. The evaluator should also expect that recordings will be subpoenaed, with the possibility of data being taken out of context for possible use in cross-examination. For these reasons we believe that where possible, all interviews should be recorded.

THE EVALUATION OF STUDIES

The evaluator’s opinions should be based in the knowledge accumulated in his or her field. In the behavioral sciences, as in any scientific discipline, the rate of growth of an evaluator’s discipline is always too great for any one person to maintain a comprehensive knowledge of recent developments. Evaluators do have a responsibility, however, to remain aware of major recent trends in their field so that they can place specific knowledge in their discipline in context and reasonably evaluate whether older studies are consistent with current disciplinary thinking.

Following World War II researchers found substantial evidence that certain styles of communication from parents to their children induced Schizophrenia in the child (Lidz, Cornelison, & Fleck, 1958; Lidz, Fleck, & Cornelison, 1965). On the basis of these studies an examiner might reasonably conclude that a youngster with early signs of Schizophrenia was the victim of what was termed a “schizophrenogenic” environment and would have appropriately considered this in making custody and visitation recommendations. More recent studies strongly suggest that the psychological environment in which the future schizophrenic grows up has a significantly smaller impact than biological factors in determining the course of the disease. Further exploration of the data on which the schizophrenogenic parent hypothesis was based demonstrated the flaws in the original analysis of the data (Lidz, 1984). Rather than the child’s Schizophrenia being the result of abnormalities in parental behavior, the already disturbed child appears to produce the parental abnormalities.

CHAPTER 2

Legal and Ethical Issues in Child Custody Evaluations

DAVID A. MARTINDALE and NORMAN M. SHERESKY

D

CHAPTER 3

Observations of Parents, Caretakers, and Children for Child Custody Assessment

ANITA LAMPL

RIGOROUS ASSESSMENT OF parenting must be objective in the child custody evaluation, which is at the interface between the mental health professions and the legal system. Many methods exist by which to assess parenting, including self-report, observations of parents and children in the home, structured and nonstructured observations of interactions in the office, and information from collateral sources. Multimethod assessments are useful because they combine sound measurement approaches and capture a broad spectrum of variance in the concept of parenting (Janssens, Bryer, Manders, & Scholte, 2005; Zaslow et al., 2006). The caveat needs to be added that only sound measurement approaches must be used as tools in custody evaluations.

This chapter reviews the usefulness of parenting observations as seen in the experimental literature, the demand for observations in the child custody assessment field, the concerns about the validity and reliability of observations, the nature of measures available in the clinical and experimental literature, home visits and observational issues, and what may be necessary to bring observations as a tool up to the level of rigorous assessment.

USEFULNESS OF PARENTING OBSERVATIONS

Parenting is a consistent yet often modest predictor of children’s outcomes (e.g., see Bonkowski, Raney, & Bristol-Power, 2001). Voluminous research on parenting exists. Parental warmth, parental hostility, parental respect for the child’s autonomy, parental ability to set limits, and parental ability to provide an environment that stimulates the child cognitively are key factors in predicting how well children do. Parental warmth and limit-setting ability are key elements also in a child’s postdivorce adjustment (Buchanan, Maccoby, & Dornbusch, 1996; Fine, Voydanoff, & Donnelly, 1993; Maccoby & Mnookin, 1992; Whiteside & Becker, 2000).

Direct structured observations of parent-child interactions yield information that is similar to information from self-report, that is, questionnaires or tests. But such observations can be a more powerful predictor of a child’s outcome than parental self-report. For example, rating observed family interactions on a 7-point Likert scale for warmth yields more predictive data than the parents’ self-reports of warmth. When several types of measures of parenting are included, the prediction of a child’s outcome is substantially enhanced (Janssens et al., 2005; Zaslow et al., 2006).

DEMAND FOR OBSERVATIONS VERSUS VALIDITY AND RELIABILITY CONCERNS

Because of their usefulness in predicting child outcome, it would be difficult to argue that parent-child observations should not be included in a child custody evaluation. In fact, many major professional associations that assume oversight responsibilities in child custody evaluations require observations of parents and children together.

The Association of Family and Conciliation Courts (AFCC), a multidisciplinary body of judges, attorneys, private mental health professionals, and court mental health professionals, concerns itself routinely with advancing best practice models for a host of ills that beset the family in court. Both in the AFCC’s already published standards and in its newest draft, it holds specifically that evaluators should observe parents and children in interactions together as part of gathering useful data from a variety of sources and in multiple ways (AFCC, 1995, 2006). The guidelines for child custody evaluation and divorce proceedings of the American Psychological Association (1994, p. 678) states that “comprehensive child custody evaluations generally require an evaluation of all parents or guardians and children, as well as observations of interactions between them.” California established its uniform standards of practice for a court-ordered child custody evaluations in 2002. Those standards state that the scope of the evaluation includes observation of the parent-child interaction “unless contradicted to protect the best interest of the child” and calls for interviewing and observing the child not just with the parents but also with “stepparents, step and half siblings,” and full siblings (California Rules of Court, 2006, Rule 5.220(e)(2)(D)).

Emphatically supporting direct behavioral observation, Gould and Stahl (2000, p. 406) said, “We can think of no defensible position in which an evaluator does not directly observe parent-child interactions when conducting a child custody evaluation.” This is a modification of Stahl’s (1994, p. 62) earlier position, in which he did not always include a parent-child observation if the child was over the age of 10. However, the custody evaluator adapting readily to this call for direct observation finds that the child custody literature raises significant concerns about the validity and reliability of procedures that evaluators use. The same AFCC (2006, 5C2-1) model standards that call for observations of interactions also note that the state of the art regarding observational data, offers no professional consensus concerning methodology. The standards then request that evaluators, concerned about “a balanced and standardized approach,” “be prepared to articulate the basis for the methodological decisions made by them” (5C2-1). (For further information on a variety of concerns about reliability and validity of data in general, see Gould, Martindale, & Flens, Chapter 4; Emery and Donohue, 2005.)

After considering a plethora of factors that could be assessed in an evaluation, the existing knowledge of what affects the long-term adjustment of children after parental separation, and the state of the science and art of evaluating unique families for court, Krauss and Sales (2000, p. 870) concluded that mental health professionals “are not currently capable of offering scientifically derived opinions detailing an appropriate custody placement for a child. An expert opinion based exclusively on one’s clinical experience is not likely to convey any predictive accuracy beyond that of a normal individual.” Krauss and Sales (2000, p. 28) then inserted a telling commentary: “Expert legal opinion that is not based on standardized assessment instruments has not generally been treated as scientific evidence by the courts. . . . This test has been admitted under a broad relevancy approach to evidence.” They add, “The mere acceptance of information or testimony by the court does not indicate that it is ethical or appropriate for [mental health professionals] to offer such testimony.”

Clearly there is tension among standards of practice, rules for court mandating parent-child observations, and the argument that clinical opinion in the absence of standardized measures is not worth more than anyone else’s and therefore may be unethical to offer. The mental health professional appears to be between a rock and a hard place in terms of custody evaluations.

Relying on the AFCC (2006) draft standards, which call for a defense of the methodology that the mental health professional uses, one would need first to establish an overview of the general use of observation by mental health professionals, the oeuvre of methodologies for observation used by evaluators, methods that are published as clinical assessment tools and therefore available to clinicians, and methods that are published in the research literature that might be applicable. Although these categories of observation techniques are not by nature nonoverlapping, there is in fact little overlap among them and some categories have no members at all.

MEASURES AVAILABLE IN THE CLINICAL LITERATURE

What is the current practice among custody evaluators as to observations of parents and children? Bow and Quinnell (2001) and Ackerman and Ackerman (1997) give detailed information about the practice of seasoned psychologists in the field. Among those evaluators, parent-child observations are the third most commonly used practice, with over 90% doing them in 2001. Psychologists spent 2.6 hours doing observations per evaluation. For two parents and an average of two children, that is a range of 20 to 27 minutes per observation set, if each parent is observed with each child separately and each parent is observed with both children together. The vast majority of evaluators (9 out of 10) did not see both parents together with the children. The evaluators primarily did not use structured tasks during the behavioral observations. The majority of observations were done in an office or playroom setting. However, one-third of the respondents also did a home visit, averaging an hour per visit.

Bow and Quinnell (2001) noted that practitioners used structured and unstructured tasks. They felt that “use of structured tasks offered or afforded a greater opportunity to observe the parent and child working toward a goal together” (p. 264). They concluded that the use of structured tasks had increased since the 1997 Ackerman and Ackerman study.

Writing 20 years earlier, Marafiote (1985, p. 45) summarized his review of the types of observational tasks used by evaluators as “semi-structured interactions, at best.” Offering a more contemporary summary, Hyman (2003, p. 220) said, “There is very limited research to help guide decisions about what types of tasks to require of families in observational sessions.” (More of Hyman’s on-point findings will be discussed later.)

That evaluators do not use similar tasks when observing parent-child interactions, even when children are of similar ages, may reflect a larger issue, which is that evaluators have not conceptualized fully what data they hope to collect when they observe the parents, children, and other family members in different combinations. However, even if evaluators have a reasonable conceptual grasp of the type of information they are seeking, there are simply no standardized clinical tools that are generally available with which to do so. No major catalogue for professional testing and assessment resources currently lists an observational instrument for families for any purpose, clinical or forensic (Multi Health Systems, Inc., 2006; Pearson Assessments Catalog, 2005; Psychological Assessment Resources, 2006; Western Psychological Services, 2006).

Three psychological teams (Ackerman & Schoendorf, 1992; Bricklin & Elliott, 1995; Munsinger & Karlson, 1994) have authored data-gathering and -organizing systems for evaluators. The Uniform Child Custody Evaluation System (UCCES) by Munsinger and Karlson was not proposed as an assessment tool. The Ackerman-Schoendorf Parent Evaluation of Custody Test (ASPECT) and the Bricklin and Elliott system, A Comprehensive Custody Evaluation Standard System (ACCESS), were proposed as structured assessment tools leading to specific outcomes for recommendations. Each of these approaches has been reviewed and criticized elsewhere (e.g., Otto, Edens, & Barcus, 2002). It is probably sufficient to state that the reviews found that the validity and reliability of both the ASPECT and the ACCESS systems were weak at best.

For these purposes, however, the parent-child observation components are interesting because the authors have published them and therefore the formats are available. In addition, the observational data are given a specific place and weight in the assessment process. This is at least a starting point for further discussion of the role of specific types of observational data in the context of child custody evaluations. Evaluators using the ASPECT observe each child interacting with each parent. Family interactions are not mentioned. The recommended tasks are semi-structured. For young children, the parent is to play with age-appropriate toys provided by the evaluator. For older children, the child and parent discuss a nonthreatening topic. The recommended time for each observation is 15 minutes. From this observation and other data, the evaluator addresses the following questions: Is the parent able to set appropriate limits? Did the parent interact appropriately with the child? Is there open communication between the parent and the child? Is there a warm, positive feeling from parent to child? Is there a warm, positive feeling from child to parent (Ackerman & Schoendorf, 1992).