Clinician's Guide to Child Custody Evaluationsby Marc J. Ackerman, Ackerman
A recognized expert in forensic psychology and creator of ASPECT (one of the most widely-used psychological instruments in child custody cases), Ackerman has conducted over 1,000 child custody evaluations. Here he addresses the custody evaluation process from beginning to end. Coverage includes the clinical interview, ethical considerations, psychological testing, preparing reports and testifying in court. The appendices contain relevant guidelines, codes and documentation necessary to perform effective assessments.
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HISTORY OF CUSTODY DECISION MAKING
The decision-making process in custody disputes was not always as difficult and challenging as it is now. Prior to the 1900s, custody of children was automatically given to fathers, because it was assumed that they were in a better position to support the children financially, and children were viewed more as property. In the event that a mother gained custody, the father was no longer financially responsible for the support of the children. The Industrial Revolution brought an increasing awareness of the mother's role in caring for her children and gave rise to the tender years doctrine, which assumed that children, particularly young children, fared better in the mother's care. This resulted in a switch to automatically favoring mothers in custody disputes. The women's movement from the 1960s to the present has called attention to the inequity of custody decision making based solely on the gender of the parent, and focus began to shift to the best interest of the child (Goldstein, Freud, & Solnit, 1973). As society moved into the 1990s, however, mothers still received placement of children 90% of the time in all divorce actions and 60% of the time in contested divorce actions.
In the early 1970s, the Uniform Marriage and Divorce Act (UMDA) was developed and subsequently adopted by most states. The UMDA focuses on the best interest of the child and provides several factors that may be considered in establishing the best interests. These factors include:
1. The wishes of the parents regarding custody.
2. The wishes of the child.
3. The interaction and interrelationships of the child with the parents,
siblings, and anyone else who significantly affects the child's adjustment
to home, school, and community.
4. The mental and physical health of the parties.
5. Other factors that may be deemed relevant to each individual case.
Over the past 25 years, courts, attorneys, and mental health professionals have been attempting to measure the variables put forth in the UMDA. Although these variables are not established as the sole criteria, they are often used as such.
COMPONENTS OF THE CHILD CUSTODY EVALUATION
All parties with whom the children reside or who are responsible for their ongoing care should be evaluated as part of the child custody evaluation, including the natural parents as well as significant others. Significant others are defined as stepparents, live-in partners, grandparents who are responsible for day-to-day care, and live-in help.
The evaluation process should include interviews, behavioral observations, tests of cognitive functioning, and tests of personality functioning. In addition, collateral information should be obtained through school records, medical records, legal and court records, and from relevant people. The types of tests that are administered, the extent of the interviews, the focus of the behavioral observations, and the utilization of collateral material will all be discussed in detail in subsequent chapters.
What to Evaluate
Because none of the traditional tests of psychological functioning yields a profile of a fit parent, other variables must be addressed. In subjectively evaluating the fitness of a parent, there are many factors to assess. The overall stability of a parent, measured as emotional stability, job stability, and stability of residence, is an important component. From the psychological point of view, the evaluator must review psychiatric hospitalizations, the use of psychiatric medication, the reason for and outcomes of psychotherapy, and the occurrence of any alcohol-or drug-related problems. Within the family structure, the evaluator addresses such questions as which parent can more likely support the children academically and which parent provides support for activities of daily living such as hygiene, medical care, car pools, school conferences, and household chores.
Determining which parent is less likely to obstruct time with the other parent is another important component to evaluate, along with identifying which parent has been more cooperative with existing court orders. In addition, extended-family relationships should be evaluated to determine how they would impact the children. The cooperativeness with the evaluation process and the appropriateness of behavior during the evaluation also need to be considered. Furthermore, the parents' social skills, social judgment, and common sense, from a practical application standpoint, also need to be addressed. The interaction between the child and the parent, negative feelings toward the parent, openness of communication between parent and child, and the quality of communication between the parents should also be assessed.
All of these subjective factors and objective test data have been incorporated in the only instrument currently available to provide a broad-based measure of fitness as a placement parentthe Ackerman-Schoendorf Scales for Parent Evaluation of Custody (ASPECT and ASPECT-SF). This instrument is discussed in greater detail in Chapter 7.
Who Performs the Evaluation?
In a mental health community with a dwindling market of indemnity insurance companies, an increase in managed health care programs with reduced fees, and a greater need to find alternative sources of income, forensic psychology in general, and child custody evaluations specifically, are viewed by many as an attractive and easy income alternative. However, not all psychologists are qualified to perform child custody evaluations. Specifically, psychologists who have little or no training in child psychology and who function primarily or exclusively as adult or adolescent psychologists should not be performing child custody evaluations if children under 12 or 13 are involved. Many adult psychologists circumvent this problem by involving a child psychologist to perform the evaluations of the children, resulting in a collaborative report.
Generally, collaborative reports are not the most effective way to perform child custody evaluations; if possible, a single professional should render an opinion. In addition, collaborative reports can double the cost to the parties at the time of trial if both the adult psychologist and child psychologist are subpoenaed to testify. Certainly, the adult psychologist can rely on the information obtained from the child psychologist through the hearsay exception or the common practice of having a psychometrician do part of the test administration. However, that does not prevent the attorneys from subpoenaing both individuals. It would also be unusual to have both the adult psychologist and child psychologist agree on all points. As a result, contradictory and therefore confusing testimony could occur during trial.
A psychological custody evaluator should possess a doctorate in psychology, be licensed in the state in which he or she practices, preferably be a member of the National Register of Health Service Providers in Psychology, and have experience in performing custody evaluations. A working knowledge of state law as it applies to family law matters is also essential to facilitate making recommendations to the court that the trier of fact can use. As the years pass, more and more programs offer courses in forensic psychology, areas of concentration in forensic psychology, and even a full doctorate in forensic psychology. Furthermore, many internship sites now offer forensic psychology rotations, if not a complete internship in forensic psychology. Newer graduates who intend to practice in the area of performing custody evaluations should have had both course work and internship experience in forensic psychology.
Historically, when psychologists initially became involved in child custody evaluations, the mother's attorney and the father's attorney would each hire an expert. Invariably, the mother's psychologist would recommend for the mother and the father's psychologist would recommend for the father. Subsequently, the court would appoint a psychologist to serve as a tie breaker. This approach was not only cumbersome and costly, it was unnecessary. Instead of a custody trial, this approach usually engendered a battle of the experts, which detracts from the issues at hand in the divorce case and is clearly not in the best interest of the children.
Courts soon realized that one of the best ways to circumvent this problem was to begin with a court-appointed psychologist, giving either or both parents the right to obtain second opinions if they did not agree with the courtappointed psychologist's conclusions and recommendations. Unfortunately, there are still some states that employ the battle-of-the-experts approach to performing custody evaluations.
Upon entering a custody dispute, psychologists must be certain that they are there to aid the trier of fact in determining placement of the children and are not the triers of fact themselves. The trier of fact is either a judge or jury (see Appendix A for a glossary of legal terms). The psychologist can be brought into a custody dispute in many ways, which are described in the next section.
Court or Guardian ad Litem (GAL) Appointed
Probably the purest way to be involved in a child custody evaluation is to be appointed by the court or guardian ad litem (GAL). The psychologist properly operates as a teammate with the GAL. Both are obligated to make recommendations based primarily on the best interest of the child( ren) and, secondarily, on other issues. As a result, the psychologist and GAL should work closely with one another in performing this process. The psychologist who is brought into a case by a GAL is often viewed as a court-appointed psychologist, because the GAL is also appointed by the court. In some cases, however, the court appoints a psychologist who is different from the one appointed by the GAL. Being appointed by the court can protect psychologists from malpractice suits, as they may have quasi-judicial immunity (see Chapter 12).
A number of years ago, a court appointed the present author in a case that had previous reports from 11 mental health professionals regarding whether child sexual abuse had occurred. The recommendations of the reports were from one end of the continuum to the other. The judge asked this psychologist to review all of the mental health professionals' materials, interview the parents, and report back to the court as to what it all meant. This is another way in which the psychologist may function as a consultant to the court.
Mother's or Father's Attorney
One appropriate role for a psychologist is as a consultant to an attorney. It is acceptable for an attorney to send a client to a psychologist for a partial evaluation, for example, a Minnesota Multiphasic Personality Inventory2nd Edition (MMPI-2) outside of the custody evaluation process in an effort to determine the stability of the parent and whether it would be reasonable to pursue custody. If consulting on one attorney's behalf is the psychologist's understood role prior to performing the evaluation of one parent, it is not necessary to provide information to all of the attorneys in the case. It is likely that if this evaluation has negative implications, the attorney will discourage the client from pursuing custody of the children. It is also possible, however, that the results will indicate that there are no psychological concerns that would interfere with the parent's ability to function as a placement parent, and, as a result, the attorney can in good faith proceed to seek custody on behalf of the client. A person in this position cannot function as either the court appointed or neutral psychologist. Ethically, a psychologist who has evaluated only one parent cannot make a recommendation about placement of children. One may only specify whether that parent would make an appropriate custodial parent, and why.
When a psychologist is hired by the mother's attorney or the father's attorney, the report should be addressed to the GAL and shared with all three attorneys. It must be explained to the hiring attorney that the results will be shared whether they are favorable to the client or not. This should be explained to the attorney in advance, the informed consent should be signed, and the parent and the attorney must agree to this approach, or the evaluation is likely to appear as a hired-gun evaluation. When hired by the mother's or father's attorney, appearing as a hired gun must be assiduously avoided.
Mother or Father without an Attorney
A number of individuals represent themselves in divorce actions. This representation is referred to as pro se. Parents choose to represent themselves for a variety of reasons: They may feel that they cannot afford the cost of an attorney; they may feel they can represent themselves better than could an attorney; they may be attorneys who want to represent themselves; or they may have utilized four or five attorneys in the past, none of whom were able to provide the outcome that the parent desired, and cannot find another attorney who would be willing to take the case. This author will rarely become involved in a case when retained by a pro se parent, because they generally have little understanding of legal implications, are blinded by their own obsessions in the case, and do not appreciate the psychologist's ethical obligations. They are often litigious beyond reasonableness, may be members of fringe-rights groups, and are usually difficult to work with. This author has been involved in cases where parents who represented themselves sued judges, attorneys, psychologists, and the attorney general; made threats requiring restraining orders; and, in one case, murdered someone.
Second Opinion Expert
Second opinion experts have the greatest danger of appearing like hired guns. If an attorney is going to bring a second opinion expert into court to testify, that expert is going to agree with that attorney's position, or the attorney would not use the expert. This leaves the courts with the old dilemma of a battle of the experts. The following approach to performing second opinion evaluations safeguards against appearing to be a hired gun. When a referral is made for a second opinion, the second opinion expert informs the attorney that the same procedure will be used as if a first opinion evaluation were being performed. The results of the evaluation will be reported to all three attorneys in the case, regardless of the outcome. It will not be a situation in which the opinion only will be used if it agrees with the attorney who hires the expert. Attorneys agreeing to this approach will inform their clients that if the second opinion agrees with the initial opinion, there will be no contest in court. However, when the second opinion disagrees with the first opinion, a child custody contest may ensue. When full evaluations are performed by qualified evaluators, in most cases the second opinion evaluation will essentially agree with the original evaluation.
Second opinion evaluations are important in situations where incomplete evaluations have been performed or complete evaluations have been performed incompetently. When any of the ethical standards that should apply to child custody evaluations are violated (see Chapter 2), or when psychologists render an opinion based on administration of one test or one hour-long interview, a second opinion evaluation also becomes essential. However, just because an incomplete evaluation was performed initially, that does not necessarily mean that the second opinion conclusion will be different.
Psychologists and other mental health professionals also can be hired as rebuttal witnesses for the explicit purpose of rebutting the testimony of other expert witnesses. It is virtually impossible to serve as a rebuttal witness and not look like a hired gun. The rebuttal witness is often asked to sit through the testimony of other experts, review the depositions of other experts, and provide contradictory testimony to these experts. Again, serving as a rebuttal witness can be useful in circumstances where ethical codes or standards of practice have been violated, blatant misinterpretations of test material have occurred, or bias has been demonstrated. When serving as a rebuttal witness in these situations, it is important to have supporting documentation of your position, not just to present your personal opinion. The courts will look upon psychologists as being more credible witnesses if supporting documentation is presented from what the legal system refers to as learned treatises. To avoid being pinned down by the opposing attorney, it is recommended that the expert have two or more references for each major point. Otherwise, the opposite counsel may try to suggest that the psychologist accepts everything in a single reference and will try to trip up the expert by quoting various statements from that text out of context.
A mental health professional may be called upon to serve as a consultant in a case without providing direct testimony. This role can include reviewing documents prepared by other mental health professionals, reviewing depositions, providing questions for attorneys to ask in examination and cross-examination, and providing supporting documentation for hypotheses that have been generated. The consultant can also be utilized to review the procedures that were followed in performing the custody evaluation. This can include reviewing the administration, scoring, and interpretation of various psychological tests and determining whether the evaluation met the standard of care and whether conclusions reached in the report follow the data presented. The roles of the consultant and expert witness are separate from one another. It is the expert witness's responsibility to be impartial and objective in providing court testimony. However, the consultant's role is to attempt to help the attorney build her or his case. When a consultant ceases the role of consultant and becomes an expert witness, there is a greater likelihood of being viewed as a hired gun.
The mediator's role in child custody evaluations is distinct from both the evaluator's role and the therapist's role. In many states, the mediator is not allowed to testify about the content of the mediation without written consent of all parties involved. This is done in an effort to prevent parents from misusing the mediation process to build a case. If an individual tries to serve as both an evaluator and a mediator, it will likely be viewed as a dual relationship. However, this author does not believe that it is a dual relationship for the psychologist to act as a mediator in a custody matter once the evaluation is complete, particularly if mediation has a significant likelihood of preventing a court battle. Because the ethical imperative is to serve the best interest of the child, the individual who conducted the evaluation may be in the best position to help avoid going to court, thereby decreasing the animosity between the parents, which in turn would benefit the child.
There are times following a psychologist's divorce and custody evaluation when parties decide to mediate rather than litigate the visitation and placement issues. It is not unusual for the psychologist who has performed the evaluations to be asked to provide this mediation service, based on his or her familiarity with the case and the existing working relationship with the parties and their attorneys. Having the evaluator become the mediator can be effective if appropriate precautions are taken.
All parties and all attorneys must be aware that if the psychologist becomes a mediator in the case, it is likely that he or she will no longer be sufficiently independent to be available for court testimony. There is no way that the psychologist can forget information that was obtained during mediation and segregate it from information obtained during evaluation. All attorneys and parties should sign a statement acknowledging that they understand and accept the psychologist's change of roles and, further, understand that the psychologist will no longer be available to testify in the caseand that the attorneys, therefore, will not ask the psychologist to do so.
Following this approach, the possibility of a conflict of interest or dual relationship is avoided. If the mediation process breaks down, the attorneys must be aware that it will be necessary to find a new psychologist to perform independent evaluations.
Psychologists must make careful decisions about getting involved in child custody evaluations. Any state association ethics committee, licensing board, or other regulatory body will report that one of the largest number of complaints against psychologists concerns child custody evaluation situations. Unlike other work that psychologists do, no matter how good the work product is, someone is going to be dissatisfied with the results and conclusions. The better the work product, the more likely that it will be attacked in the courtroom setting. This runs counter to the way mental health professionals are trained.
Mental health professionals are trained as helping professionals. Once they enter the legal system, however, they are entering an adversarial process. It is often difficult to blend the helping and adversarial approaches to help the client as much as possible. Nevertheless, psychologists have both an ethical and moral obligation to make this adversarial process as helpful as possible. One means of doing this is to work as diligently as possible to try to prevent a case from resulting in testimony in open court, where the mother and father may testify about how bad the other parent is. These kinds of wounds are very difficult to heal, as are the wounds from hearing the psychologist testify about the psychological status of each parent.
Because of the stress, risk factors, and energy required to perform child custody evaluations, not many psychologists are willing to take on this responsibility. As a result, once the legal community knows that a psychologist is willing to perform these evaluations, a substantial referral base can be quickly established. This can easily be done by sending a letter to local family law attorneys introducing yourself and identifying your willingness to perform child custody evaluations. Offering to give presentations to local bar associations or writing articles for community newspapers can also be helpful.
It is during the psychologist's initial entry into this system that a reputation is established that the psychologist will have to live with for many years to come. Because attorneys spend much of their time standing around courtrooms and in courthouse hallways waiting for cases to be called, they also spend a considerable amount of time talking with one another about divorce-related issues, including experts. It is through this network of attorneys talking with one another about what they can expect from psychologists performing these evaluations that psychologists' reputations are discussed.
When a referral comes to one's office for a custody evaluation, it is important to check with all of the parties involved, in advance of any work, regarding what questions are to be addressed by the evaluation. It is not unusual for one of the parents to make the initial appointment and to provide a scenario that is contrary to what the GAL, other attorneys, or the other parent is interested in having done. The psychologist is much more likely to provide a meaningful report if it is understood in advance what types of information are desired from the evaluation. Thus, as part of the initial contact with an individual, it is important to get releases to speak to all of the attorneys in the case to make sure that the desired work is performed. Furthermore, it is essential for the psychologist to determine what standard will be followed by the court, which will directly impact the type of recommendations that are made. For example, there may be a best interest standard that suggests a level playing field, with the evaluator making a recommendation based on what is perceived to be in the best interest of the children. However, some states require a necessary or harm standard if a change is to take place within an identified period of time after the initial court order has been entered. This suggests that the evaluator will be required to demonstrate that it is necessary to change placement of the children to avoid danger or harm to the children. Lastly, some states have laws indicating that there is a rebuttable presumption that the children stay where they are, and the onus is on the parent filing the motion to demonstrate that it is to the children's advantage to change placement as opposed to the onus being on the current placement parent to demonstrate that the children should stay where they are.
During the initial evaluations, if a psychologist is too eager to please the initial referral sources and appears as a hired gun, that reputation will follow the psychologist. A psychologist who maintains the position of always recommending based on what is best for the child( ren), regardless of who has brought the psychologist into the case, will enjoy a long-standing, positive reputation.
Fact Witness versus Expert Witness
Before a clinician becomes involved in a custody evaluation, it is essential to identify what role the clinician will fulfill. When the clinician is qualified as an expert witness, the clinician may render opinions about the case, be subject to hearsay exceptions, and address the ultimate issue. Generally, individuals performing custody evaluations will be considered expert witnesses. However, a therapist in a custody case is generally considered a fact witness who can only report on the facts of the therapy without rendering opinions, being subject to the hearsay exception, or addressing the ultimate issue.
It is clear that psychologists should understand their role in the custody evaluation process. Although they can become involved in many different ways, psychologists must always function in the best interests of children. Many factors need to be considered during the custody evaluation process. I devote the remainder of this book to looking at those factors and how to incorporate them into a meaningful report and testimony.
Meet the Author
Marc J. Ackerman Ph.D., is a professor at the Wisconsin School of Professional Psychology where he is the chair of the Forensic Psychology program. He has been involved in over 2000 divorce related cases, has given over 125 seminars and workshops throughout the world and has written over 75 professional articles while in clinical and forensic private practice. He has five books in current publication, including Essentials of Forensic Psychological Assessment (Wiley) and is the co-creator of ASPECT, a major child custody evaluation instrument.
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