Child Custody Research Paper

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Abstract

This research paper begins with a historical overview of the manner in which child placement disputes have been adjudicated and a discussion of the best interests of the child standard. The outline of the factors that psychologists endeavor to assess includes a discussion of the methodological problems inherent in this form of assessment. The significant differences between therapeutic work with families and forensic assessment of families are explained. Because performing custody evaluations requires that psychologists work in a collaborative manner with attorneys and adapt to procedures with which mental health professionals are often unfamiliar, the adjustments that must be made are discussed. The research paper concludes by providing some perspectives on experts offered by two judges.

Outline

Psychology’s Contribution to Understanding Best Interests
Psychological Assessment: What Can We Measure?
The Marriage of Clinical Skills and Forensic Precision
Dancing with Attorneys without Tripping
Following the Rainbow

1. Psychology’s Contribution To Understanding Best Interests

The historical context of custody evaluations begins with Roman law and the presumption of paternal preference. Children were viewed as the property of their fathers. A father had absolute power over his children. He was allowed to place his children into slave labor or sell them for profit. A child’s mother had no legal rights. English common law also provided for absolute paternal power. Children were viewed as the property of the father and he had sole discretion over where the children lived, both during the marriage and after a divorce. Mothers had restricted access to their children after divorce.

Though the reasoning varied, custodial placement decisions based primarily on generally accepted sex roles were the norm until 1970. In 1813, in deciding on the custodial placement of two children, ages 6 and 10, the Supreme Court of Pennsylvania declared: ‘‘It appears to us, that considering their tender age, they stand in need of that kind of assistance which can be afforded by none so well as a mother’’ [Commonwealth v. Addicks and Lee, 5 Binney’s Rep. 520 (1813), at 521]. At approximately the same time, in Great Britain, what came to be referred to as the tender years doctrine dictated that children younger than age 7 required the care of their mothers. From age 7 on, the custodial responsibility for children would revert back to the father. As the work of fathers began to take them outside the home and as mothers became the primary caretakers, a preference for placement of children with their mothers developed. By the 1920s, a presumption in favor of the mother was clear in most American courts.

Comfort with the notion of a maternal preference was buttressed by Freud’s then-popular theory that, among other things, stressed the unique role of mothers in the lives of children. Theories of bonding contributed further to the view that children needed to be with their mothers. Current research has demonstrated that infants form meaningful attachments to both parents by the middle of their first year; however, only recently has such research raised questions concerning the wisdom of a maternal preference.

In the 1960s, several social changes stimulated a reexamination of the maternal preference. These factors included an increase in the number of fathers wishing to maintain an active post-divorce role in the lives of their children, the entry into the workforce of large numbers of mothers, and an increased sensitivity to the discriminatory effects of placement decisions predicated on sex. In 1970, the U.S. Congress passed the Uniform Marriage and Divorce Act, providing for a best interests of the child standard. The tide had turned from a focus on paternal or maternal preference or rights to a focus on what is best for the child. Simultaneously, psychology offered a revolutionary idea: The concept of the psychological parent was developed. Once society had decided that children, being the most innocent victims of divorce, should be protected as effectively as possible from its emotional consequences, the view emerged that mental health professionals could assist triers of fact in determining what parenting plan was most likely to best serve the interests of the children.

The best interests standard is not without its critics. It has been criticized as poorly defined, as too ambiguous, and as providing fodder for disputes and litigation. Mnookin has argued that the broad judicial discretion provided by the best interests standard leaves judges free to impose their personal biases and beliefs on their judicial determinations. The Supreme Court, in deciding Troxel v. Granville (a grandparents’ visitation case), made note of the fact that the Washington Superior Court trial judge (whose decision was overturned) had deemed it appropriate to ‘‘look back at some personal experiences’’ [Troxel v. Granville, 530 U.S. 57 (2000), at 61].

The challenge is to develop a legal standard that is sensitive both to the social values of American culture and to the needs of the legal system. A legal standard addressing the best interests of the child should ‘‘offer effective and useful guidelines, so that similar cases are decided similarly without extralegal factors significantly affecting final dispositions’’ (Krauss & Sales, 2000, p. 845). A legally effective child custody standard would balance the needs of the family, the needs of society, the evolving social science research, the evolving case law precedents, and the changes in each family configuration while minimizing state intrusions into the functioning of the family.

In many states the criteria to be utilized in evaluating comparative custodial suitability are defined by statute. In states where criteria are not so defined, experts conducting evaluations of comparative custodial fitness bear an obligation to articulate the criteria that they will utilize in performing their assessments.

2. Psychological Assessment: What Can We Measure?

In 1971, the Supreme Court handed down a decision in Griggs et al. v. Duke Power Co. (401 U.S. 424), a case that, on its face, had nothing whatsoever to do with children and custodial placement decisions. The Griggs case involved assessment in the selection, placement, and promotion of personnel. The court ruled that testing procedures must be demonstrably reasonable measures of (or predictors of) job performance. In the years since 1971, forensic psychologists involved in custody work have come to view the Griggs decision as an exhortation, urging us to focus our attention and our assessment efforts on functional abilities that bear directly on the issue before the court. Within the context of custody work this suggests that we must endeavor to ascertain what attributes, behaviors, attitudes, and skills are reliably associated with effective parenting and confine ourselves to assessing those characteristics as they relate to the children who are the focus of the dispute.

Our problem is that the only assessment instruments with established reliability and validity provide data pertaining only to one or two of the criteria of potential interest to us. An instrument such as the MMPI-2, for example, may provide useful information concerning a test taker’s general mental/emotional health, but that leaves much to be assessed about the individual’s parenting. LaFortune and Carpenter (1998, p. 222) list the seven most frequently used assessment instruments that ‘‘focus on parenting skill and the parent–child relationship’’ and that are ‘‘touted by their authors as helpful in clinical determinations of parental fitness.’’ LaFortune and Carpenter declare: ‘‘[T]he validity of these measures is unestablished at best and seriously flawed at worst’’ (p. 222). Although the hope is expressed that improvements in these instruments may make them useful in the future, the authors conclude that their use at present ‘‘cannot be recommended’’ (p. 222).

Although frequency of use by surveyed mental health professionals is not an acceptable measure of either the reliability or the validity of an assessment instrument, a disturbingly high proportion of custody evaluators use instruments that are psychometrically deficient but that are popular, largely because of successful marketing. Additionally, some clinicians have brought to forensic work psycho-diagnostic assessment instruments generally considered useful in health care settings but ill-suited to the evidentiary demands of forensic work. In a therapy setting, a psycho-diagnostic assessment marks the beginning of an ongoing relationship in the course of which there will be opportunities for subsequent reassessment. In a forensic setting, the report in which one’s assessment is described marks the end of a relationship. No opportunities to reassess are provided. Because of this critical difference between clinical assessment and forensic assessment, it cannot be presumed that instruments popular among clinicians are suitable in forensic work.

Consider the following, from the Standards for Educational and Psychological Testing (American Education Research Association et al., 1999): Tests are to be accompanied by documentation that will provide test users with ‘‘the information needed to make sound judgments about the nature and quality of the test, the resulting scores, and the interpretations based on the test scores’’ (p. 67). Elsewhere, the authors of the Standards opine: ‘‘The greater the potential impact on test takers, for good or ill, the greater the need to identify and satisfy the relevant standards’’ (p. 112).

The authors of the Standards have called attention to the fact that ‘‘[w]hen directions to examinees, testing conditions, and scoring procedures follow the same detailed procedures, the test is said to be standardized. Without such standardization, the accuracy and comparability of score interpretations would be reduced’’ (p. 61). Many of those currently performing evaluations of comparative custodial suitability came to this work via clinical psychology, where being helpful is not viewed as an impediment to assessment. Moreland, a former member of the NCS staff and the MMPI-2 restandardization team, observed that ‘‘in responding to questions, examiners may inadvertently hint at the nonpathological answer when the test taker is someone whose position they favor (whether it be a custody case, injury case, or whatever).’’ He added: ‘‘[N]either NCS nor the Eyde group has told test givers how to deal with questions from test takers’’ (e-mail from Kevin Moreland, August 22, 1996).

In the vast majority of custody disputes, it is presumed by all involved that both parents are suitable. The court’s task, with advisory input from the mental health professional, is to decide whether, in addition to being capable, the two parents can coparent effectively. If they can, a joint custodial arrangement may be appropriate; if they cannot, one of these two suitable parents must be designated as the primary custodian. If a primary custodian must be designated, then the court must decide which of two presumably suitable parents is more suitable. Psychologists, and those who seek our advisory input in custodial placement disputes, must recognize that we have no way of evaluating the validity of our recommendations because we have no way of knowing what would have occurred if the nonfavored parent had, instead, been selected as the primary custodian. Otto et al. (2003) observed that ‘‘research in this area will always be constrained by the inability to use true experimental designs to address the most prominent questions related to custody’’ (p. 203).

The foregoing paragraphs have an unmistakably pessimistic tone. Some might argue that we do not do custody evaluations well and that if we cannot do them well, we should not do them at all. It is reasonable to presume that as increasingly more psychologists become involved in assessing comparative custodial fitness and share with their colleagues their ideas for improving our procedures, we will become increasingly more proficient. Deciding not to do custody evaluations is not the answer.

3. The Marriage Of Clinical Skills And Forensic Precision

Most psychologists currently practicing or preparing to practice forensic psychology obtained their original training in clinical psychology. Forensic work is built on solid clinical training and experience; however, to function effectively as a forensic psychologist, the therapeutic mind-set must be altered significantly. It is also important to recognize that there is, in the words of Greenberg and Shuman (1997), an ‘‘irreconcilable conflict between therapeutic and forensic roles’’ (p. 50). A psychologist who is serving or who has served in a therapeutic capacity with any of those involved in a custody dispute should not function as the evaluator. Similarly, an evaluator should not offer therapy or counseling services to those whom he or she has evaluated.

In a forensic setting we seek answers to questions that have been posed (either directly or implicitly) by the court. We are not attempting to determine the etiology of a litigant’s problems, nor are we attempting to set therapeutic goals and formulate treatment plans. Instead of communicating warmth, we communicate skepticism. Although that may sound harsh, it is important that litigants be reminded that information offered by them will not simply be written down in our notes and accepted at face value. Reasonable attempts will be made by us to verify information given to us. Section VI.F of the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) reminds forensic psychologists that ‘‘[w]here circumstances reasonably permit, forensic psychologists seek to obtain independent and personal verification of data relied upon.’’ Ceci and Hembrooke (1998, p. 4) have expressed the view that ‘‘the uniquely human qualities that compel us to want to help are the very qualities that can make us poor experts.’’

Some of the most serious problems that forensic psychologists create for themselves stem from an inability or unwillingness to control the impulse to think like and act like ‘‘helpers’’ when they are obligated, by virtue of their forensic task, to function as examiners. Shuman (1993, p. 298) has opined that the techniques customarily employed by mental health professionals to establish a therapeutic alliance ‘‘are entirely inappropriate in a court-ordered examination.’’ Pruett and Solnit (1998, p. 126) express the view that ‘‘empathic skills must be constrained in a manner unusual for clinical practice but essential for fair, ethical, evaluative interaction.’’

The prevailing presumption in clinical work is that those who appear before us honestly share with us their perceptions of themselves and those with whom they interact. There is a tendency to presume, further, that discrepancies between a client’s descriptions and objective reality are attributable, primarily, to the operation of various perception and memory-distorting phenomena of which the client is not consciously aware. Only limited thought is given to the possibility of deliberate, calculated lying.

Individuals being examined within the context of custody disputes are strongly motivated to present themselves as being better adjusted than they know themselves to be. An examination that might be deemed adequate in a clinical context might be viewed as inadequate in a forensic context. Regardless of the assessment instruments utilized, a forensic examiner must operate more like an investigator than a sympathetic and supportive listener. In particular, custody evaluators cannot be passive recipients of offered information. We must use clinical skills to elicit information and actively seek, both from the litigants and from appropriate collaterals, any information that might reasonably be viewed as pertinent. Data collected by Ackerman and Ackerman suggest that approximately 28% of the evaluative time expended by those responding to a survey was devoted to information verification (obtaining information from documents, disinterested collateral sources, and other nonparties). Bow and Quinnell found that 98% of evaluators review documents relevant to the case, 86% interview therapists, 78% interview teachers, and 52% interview physicians and/or pediatricians.

4. Dancing With Attorneys Without Tripping

In the field of custody work, most of the missteps that occur in interactions between forensic psychologists and attorneys relate to conflicting obligations. Such conflicts are easy to understand when psychologists are endeavoring to function as impartial examiners. Clashes are often unanticipated when psychologists have been retained by attorneys to function as their consultants or to offer expert testimony. Even when functioning in the consultant role, however, psychologists’ ethical obligations differ from those of the attorneys who have retained them and choreography can still be a challenge.

It is not uncommon for judges and attorneys to ask that a psychologist functioning as impartial evaluator alter his or her customary data collection sequence in the name of expediency or offer interim recommendations to assist the court in resolving a pendente lite issue. With regard to data collection, there is a logical progression to the information-gathering aspect of a custodial fitness evaluation, and although some modifications are acceptable, others are not. Data obtained through the administration to the parties of psychological tests and information secured by means of various questionnaires inevitably suggest areas of inquiry. It is inadvisable to conclude one’s evaluative sessions with the litigants without having in hand test data and the questionnaires.

Standard 9.01 (a) of the psychologists’ ethics code (American Psychological Association, 2002) declares: ‘‘Psychologists base the opinions contained in their recommendations, reports, and diagnostic or evaluative statements, including forensic testimony, on information and techniques sufficient to substantiate their findings.’’ In the absence of sufficient information, recommendations should not be offered. All involved should also be mindful of the fact that parenting plans set in place in response to specific and immediate concerns alter family dynamics in ways that are not readily predictable and that may not be in the best interests of the children.

Court appointment does not guarantee evaluator competence. Neither does competence assure findings and recommendations with which all involved will be pleased. Where an expert’s opinions have not been formulated through the utilization of appropriate procedures and are not supported by reliable data, exposing these deficiencies is a critically important function of an opposing expert.

The Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) closes with a reminder (contained in section VII.F) that ‘‘[f]orensic psychologists are aware that their essential role as expert to the court is to assist the trier of fact to understand the evidence or to determine a fact in issue.’’ Psychologists retained as consultants to attorneys or retained to offer expert testimony are, despite their collaborative relationships with those who have employed them, obligated to promote understanding and to decline participation in partisan attempts to distort or misrepresent evidence. Just as those whom we evaluate should be provided with information concerning our policies and procedures, so, too, should attorneys who retain us be provided with such information. Information provided in advance prevents problems.

5. Following The Rainbow

Standard 2.01 (c) of the psychologists’ ethics code states, in part: ‘‘Psychologists planning to provide services … new to them undertake relevant education, training, supervised experience, consultation, or study.’’ Section 2.01 (e) states, in part: ‘‘In those emerging areas in which generally recognized standards for preparatory training do not yet exist, psychologists nevertheless take reasonable steps to ensure the competence of their work’’ (p. 1064). In 2002, the American Psychological Association formally designated forensic psychology as a specialty. The obligation of psychologists trained in clinical psychology to professionally prepare themselves for forensic work if they plan to offer forensic psychological services is clear yet occasionally ignored.

The performance of an evaluation of comparative custodial suitability is, by definition, a forensic psychological endeavor. In our view, such evaluations should be guided by the forensic model. Earlier, we alluded to the Supreme Court’s expressed disapproval of a trial court judge’s decision to ‘‘look back at some personal experiences’’ [Troxel v. Granville, 530 U.S. 57 (2000), at 61] in formulating his opinion in a visitation dispute. The opinion formulation process to which the judge made direct reference is, more often, unarticulated. There is reason for concern that psychologists, whose services have been sought because of their presumed expertise, occasionally reflect on personal experiences, values, and beliefs in formulating their opinions. What makes an opinion an expert opinion is not the professional credentials of the individual whose lips form the words or whose keyboard is used to type them. What makes an opinion an expert opinion is the manner in which the opinion was formulated. Professional credentials are necessary but not sufficient.

An expert opinion is formulated utilizing the accumulated knowledge and the recognized procedures of the expert’s field. If the accumulated knowledge of the expert’s field was not utilized, the opinion expressed is not an expert opinion. It is a personal opinion, albeit one being expressed by an expert. Judge Alex Kozinski has astutely observed that the task facing triers of fact, when expert testimony has been offered, ‘‘is to analyze not what the experts say, but what basis they have for saying it’’ [Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d. 1311 (9th Cir. 1995), at 1316]. The Honorable Stephen Hjelt, the presiding Administrative Law Judge for the California Office of Administrative Hearings in San Diego, in what might best be described as an open letter to psychologists, opined that our

‘‘profession has strong roots as a discipline that has a foundation in the scientific method. However, some of you simply stopped using it’’ (Hjelt, 2000, p. 12). We close by urging psychologists, attorneys, and judges to consider the words of judges Kozinski and Hjelt. Psychologists should use their training in methodology, cross-examining attorneys should demand that testifying experts articulate the bases for their opinions, and judges should consider the data that form the basis for expert opinions and not be gullible consumers of recommendations offered by experts.

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