Purpose and Utility of Child Custody Evaluations: The Attorney's Perspective
http://www.100md.com
《美国精神病学与法律学报》
Ms. Waller is Clinical and Research Assistant and Dr. Daniel is Director, Forensic Psychiatric Services, Custody Evaluation Research Center, Columbia, MO.
Abstract
This study attempts to fill a gap in the literature by assessing the perspectives of attorneys regarding child custody evaluations completed by mental health professionals. Fifty-nine attorneys completed an anonymous survey designed to ascertain their opinions about: (1) what factors prompt a custody evaluation, (2) expectations regarding evaluation procedures, (3) the utility of the resultant report, and (4) the impact of evaluations on litigation. Findings indicate that attorneys are most likely to seek child custody evaluations in the context of allegations regarding physical abuse, sexual abuse, or parental fitness. In addition, attorneys reported that they expect a very comprehensive evaluation procedure and find utility in an inclusive report. Finally, survey findings suggest that custody evaluations play a significant role in decisions to negotiate a settlement rather than proceed to trial. Limited available research and current practice related to these findings are reviewed.
Divorce rates in the United States remain high.1 Although the majority (90%) of child custody disputes are settled out of court, a notable percentage involve protracted litigation.2 A detailed review of the complex legal history of child custody disputes is beyond the scope of this article; however, major trends should be delineated. Early presumptions about custody were based on gender bias, with fathers being favored through laws of paternal entitlement. This practice was followed after the Industrial Revolution by a preference for mothers, evident in the tender-years presumption or maternal preference.3 Historical perspectives on the fitness of parents have also been heavily influenced by the perceived morality of the time, resulting in discrimination against homosexual or cohabiting parents.4 Starting in the mid-1960s, the best-interest doctrine was adopted as a gender-neutral, child-centered model for custody decisions. The best-interest standard replaced parental preference, allowing for award of a child to a non-parent, as highlighted in the landmark case Painter v. Bannister,5 in which custody of a child was granted to the maternal grandparents. The first joint custody statute was passed in North Carolina in 19576; however, shared parenting did not gain acceptance until the 1980s. Focus on the child also led to increased appointments of a guardian ad litem (GAL), so that the judicial needs of the child would be considered.7
About this same time, the role of mental health professionals in custody litigation became more pronounced. The Uniform Marriage and Divorce Act,8 passed in 1974, attempted to standardize best-interest criteria. These included consideration of the wishes of the parents and child, as well as the physical and mental health of all parties, parent-child interactions, the child's adjustment in multiple areas of life, and any special matters relevant to parental fitness.9 The increased attention to children's emotional and developmental needs necessitated the involvement of mental health professionals in the legal custody dispute process.7 This article focuses on the role of mental health professionals in providing impartial child custody evaluations at the request of the court or by agreement of all participating attorneys. It is important to keep in mind that regional and individual differences affect the training and practice of custody evaluators. However, standardized guidelines for conducting such evaluations have been established by the American Psychological Association,2 the Association of Family and Conciliation Court,10 and the American Academy of Child and Adolescent Psychiatry,11 as well as by the experts active in the field.12–15 In a comprehensive survey of mental health professionals who conduct child custody evaluations, it was found that the average evaluation takes approximately 21 hours, including time spent in each of the following activities: interviews of relevant parties, psychological testing, observations, review of materials, collateral contacts, writing the report, attorney consultation, and court testimony.16
Little prior research has been conducted to examine the perspective of judges on evaluation procedures.17,18 While judges seek to make a decision in the best interest of the child, attorneys who are not functioning as GALs are looking out for the parents, who are their clients. Attorney opinions regarding mediation have been studied19,20; however, a literature review of relevant databases failed to identify any previous studies in which attorneys' perspectives on child custody evaluation procedures were examined. Lee and colleagues21 evaluated attorney opinions regarding 14 "assessment" items in a sample of Canadian family lawyers. In addition to responses relevant to mediation, attorneys reported that clients should have an independent lawyer, assessment is preferred over litigation, and clients should participate in mediation prior to assessment. However, they did not agree that assessment had beneficial outcomes in regard to settlement compliance, shared parenting, or family relations. Considering variables that contribute to a decision to refer clients to assessment, attorneys in the study ranked items in the following order of importance: allegations of child abuse against the client or against the ex-spouse, availability of quality assessors, allegations of spousal abuse against the ex-spouse or client, interparental conflict, and strength of the client's case. In addition, it should be noted that unpublished data from a survey of attorneys is presented in a recent book supplement.18 In the supplement to their book, Psychological Experts in Divorce Actions (1998), published in 2002, Ackerman and Kane report findings of an unpublished study by Ackerman and Kelley. In that study, attorneys were asked to respond to the same survey administered to psychologists in the Ackerman and Ackerman (1997) study (with appropriate changes in working to assess expectations rather than practices). To the best of our knowledge, this survey has not since been published in a peer-reviewed journal. Although the survey is quite comprehensive, it does not address the utility of specific aspects of the evaluation report or its effect on the litigation process.
The lack of research in this area is a notable gap in the literature, given that attorneys are generally responsible for initiating custody evaluations and that increasing importance is placed on taking into account consumer perspectives when designing services (e.g., in focus group research). In a special issue on child custody published in Child and Adolescent Psychiatric Clinics of North America, the Honorable Anne Kass writes:
Legal professionals and mental health professionals working together in custody disputes have enormous potential to do good... . I believe it is essential for these two professions to work to forge new partnerships in helping families resolve custody disputes more effectively and more humanely. It is difficult, but it is similar to what we are asking divorcing parents to do. A good way for us to teach cooperation is to model it, but first we need to better understand one another [Ref. 22, p 257].
The present research was an exploratory study in which we sought to gain a better understanding of the perspective of attorneys regarding custody evaluations in child custody litigation. The current study extends the work of Lee and colleagues21 in several key ways. First, the study utilized a sample of attorneys who have experience with the American judicial system and custody evaluations in particular, not just family law. Second, the current survey includes a wider range of factors that may lead to a custody evaluation and that have been noted as salient custody considerations in past research,23,24 including parental sexual orientation, relocation, remarriage, and alienation. Matters of child preference and adoption were also included, and a key distinction was made between sexual and physical abuse. In addition, multiple items were included that assessed attorneys' perspectives on the specifics of the evaluation process and outcomes once a decision has been made to seek a custody evaluation. The following primary research questions were examined:
1. What prompts attorneys to seek child custody evaluations?
2. What procedures do attorneys expect will be included in an evaluation and in the report?
3. What specific parts of the evaluation report do attorneys find useful?
4. What effect does the evaluation have on the legal process?
Method
Sample
Potential participants in the current study were identified by consulting the records of a Custody Evaluation Center for the past 15 years. The center, located in Missouri, has been providing custody evaluations in contested cases referred only by attorneys or judges. According to Missouri Statute 452.37525 child custody is based on the following factors: parental wishes, child's wishes, child-family member relationships, the child's adjustment, mental and physical health of family members and abuse history, the child's need for continuing relationships with both parents, parental ability to meet the child's needs, parental relocation intentions, and the likelihood that one parent will allow the child to have frequent and meaningful contact with the other.
A total of 156 attorneys were identified who had represented parents or served as GALs in custody evaluations completed at the center; however, current contact information could not be established for 18 of the attorneys. Thus, an initial subject pool of 138 participants was available. Of this group, 76 attorneys did not return surveys for unknown reasons, 1 declined to participate because of limited experience in the area and 1 because of a negative experience with the evaluation process; 1 had become a judge.
The final sample size was 59, 43 percent of the initial subject pool. The sample composition was 78 percent male (n = 46) and 22 percent female (n = 13) and primarily white (97%, n = 57), with the remaining 3 percent (n = 2) of participants identifying themselves as African-American. No participants were younger than 25 years, 9 percent (n = 5) reported being in the age range of 26 to 35 years, 21 percent (n = 12) in the range of 36 to 45 years, 48 percent (n = 28) in the range of 46 to 55 years, and 17 percent (n = 10) in the range of 56 to 65 years; the remaining 5 percent (n = 3) were older than 65 years. The following information was provided regarding the number of years practicing law: 7 percent (n = 4), less than 5 years; 5 percent (n = 3), 6 to 10 years; 29 percent (n = 17), 11 to 20 years; 42 percent (n = 25), 21 to 30 years; 15 percent (n = 9), 31 to 40 years; and 2 percent (n = 1), more than 40 years.
Procedure
Prospective participants were contacted by mail and asked to complete a brief survey regarding the usefulness of child custody evaluations. They were informed that survey results might be published and were instructed to omit their names from the surveys and to use the return envelopes provided to maintain anonymity. This methodology was chosen rather than informed consent, due to the benign nature of the survey and a desire to reduce social desirability among attorneys who plan to seek evaluations with the center in the future. Approximately two weeks after the initial mailing, a reminder letter was sent in an attempt to improve participation rates. The letter was mailed to all potential participants, because those who had already returned completed surveys could not be distinguished among the anonymous submissions. This research proposal was neither reviewed nor approved by the University of Missouri—Columbia Institutional Review Board (human subjects committee); however, had it been reviewed, it would have qualified for exempt status under 45 CFR 46.101.
Measures
The questionnaire used in the present study was the Child Custody Evaluation Survey for Attorneys. This exploratory measure was designed for the current study, and no information on its reliability or validity is currently available. The questionnaire was reviewed by an undergraduate research assistant and an attorney with experience as a GAL and trial lawyer, who did not take part in the study. Several revisions were made as a result of their feedback. The final questionnaire requested demographic and background information of participants, including gender, race/ethnicity, age range, and number of years in law practice. Participants were then asked to respond to 59 statements in a true/false format (Tables 1, 2). These statements covered topics in the following areas: (1) the attorney's experience with child custody evaluations, (2) their perception of availability of evaluators, (3) the desirability of evaluations from the perspectives of various parties, (4) the impact of evaluations, (5) personal biases, (6) their expectations of the evaluation, (7) their expectations of the report, (8) the usefulness of various report components, and (9) the impact of the report on litigation. Participants were then asked to rank order a list of circumstances that may prompt an evaluation (e.g., parental alienation, sexual abuse allegations) with 1 indicating the most common factor and 11 the least common factor (Table 3). Finally, participants were given an open-ended prompt to record any additional comments they might have.
Data Screening
All survey data were entered by the first author. The data file was then examined for plausibility of ranges, and any errors in data entry were corrected. All returned surveys were deemed to include usable data.
Results and Discussion
Descriptive statistics regarding ranking of factors that prompt custody evaluations (i.e., their perceived purpose) can be found in Table 3. Information regarding survey responses to true/false items assessing attorney perspectives on seeking evaluations and their expectations and perceived utility of the evaluation process can be found in Tables 1 and 2, respectively. It should be noted that the number of respondents (n) varies somewhat because data were missing for some items. Missing data were generally attributable to participants who indicated that a particular statement did not lend itself well to a true/false or ranking format or participants who did not answer but instead provided qualifying information. Subgroup analyses (e.g., whether survey responses differed by gender) were not statistically feasible, given the relatively small and homogenous nature of the current sample.
Purpose of Child Custody Evaluations
Descriptive statistics regarding rankings of factors that may prompt a custody evaluation can be found in Table 3. They are listed in order from most to least common. Sexual abuse allegations and physical abuse/neglect allegations in the context of divorce were endorsed as most common by participants, with mean rankings of 2.96 and 2.98, respectively (see Table 3 for standard deviations and ranges). The high rankings awarded to abuse items is consistent with the only other published study of attorneys' opinions regarding custody evaluations.21 However, in the current research, sexual abuse was distinguished from physical abuse. Both were awarded nearly equal status as the most common problems that prompt an evaluation—a noteworthy finding, given the enormous complexity inherent in investigating sexual abuse allegations within the context of a custody dispute.26 Aspects of parental fitness, including mental illness, alcoholism, and instability as a whole were judged by participants to be nearly as common as abuse in prompting an evaluation (mean (M) = 3.12). Thus, it appears that attorneys rely appropriately on mental health professionals to determine parental fitness, as they are uniquely trained in diagnosing mental illness and in assessing any impact it may have on parenting.
Parental conflict/lack of compliance with court orders (M = 4.41), clear bias of the child/alienation (M = 4.53), and domestic violence (M = 5.12) received the next highest mean rankings. Allegations of spousal abuse and interparental conflict received moderate rankings in the study by Lee and colleagues,21 as well. In addition, the current research highlights the importance attorneys place on matters of child loyalty, such as parental alienation, that may arise in contested custody disputes.27
The remaining factors received significantly lower rankings and included unclear child preference (7.74), parental relocation (7.90), parental remarriage issues (8.26), and parental sexual orientation (8.42). It has been noted in prior research that these are important considerations for mental health professionals who conduct custody evaluations22,23; however, they do not appear to be the key situations that prompt referral, from the perspective of attorneys. Finally, grandparent/adoption problems received the very lowest mean ranking (9.38).
Practice and Utility of Child Custody Evaluations
As can be seen in Table 1, nearly all participants had experience in representing parents and serving as GALs (98% and 95%, respectively). Similarly, 95 percent of participants reported that they had sought an evaluation by a mental health professional as an advocate of the parent and 83 percent as an advocate of the child. Note that 95 percent of participants endorsed the item "I prefer to have all parties involved in the evaluation [versus just one parent or the child(ren)]." This is notably consistent with the views of mental health professionals, who have been found in earlier research almost unanimously to prefer to hold an impartial role.16 Participation of all relevant parties allows the evaluator to make conclusions and recommendations that would not be professionally appropriate in a one-sided evaluation. It is also arguably better for both attorneys and experts that custody evaluators not be viewed as the hired gun of one side or the other.
Nearly three-fourths (73%) of attorneys endorsed the item, "A mental health professional is the best person to conduct a custody evaluation." This suggests a favorable attitude toward the role of mental health professionals as custody evaluators. In future research, it may be of additional interest to provide an open-ended question to ascertain who besides mental health professionals attorneys might call on to provide a custody evaluation. Regarding potential outcomes that are sought from custody litigation, 61 percent of attorneys reported (i.e., endorsed as true) that joint custody is sought by clients most often; 40 percent seek sole custody, 33 percent modification of custody, and 28 percent change of visitation. (Please recall that participants responded to each item as true or false in their view, and thus items are not considered mutually exclusive and do not add up to 100%.)
Attorneys also responded to a series of items exploring factors that may limit the acquisition of an evaluation. "Lack of resources of clients" was endorsed by 98 percent of participants, "excessive cost" by 86 percent, and "lack of available experts" by 64 percent, whereas "lack of faith in such evaluation" and "undue delay in completing the evaluation" were endorsed by only 23 percent and 16 percent, respectively. In the study by Lee and colleagues,21 "availability of good assessors" was given an average importance rating of 5.9 (with 7 indicating "very important"). Attorneys were also asked whether various potential participants (i.e., mother, father, custodial parent, noncustodial parent, and children) usually responded unfavorably to the request for a custody evaluation. The percentage endorsing each of these individuals as having a typically negative reaction was low (less than one-fourth of the sample) with the exception of the custodial parent, from whom 47 percent of the attorneys had noted a negative reaction. Perhaps this is because custodial parents are satisfied with the status quo and fear that an evaluation may result in a loss of parenting time for them.
Of note, 83 percent of participants reported that the evaluation usually helps the child(ren). According to 40 percent of the sample, the evaluation generally has little impact on the child(ren). Only two percent of participants reported that the evaluation usually harms the child(ren).
Attorneys were asked to respond to items assessing their personal opinions regarding the theoretical perspective that should guide custody awards. As expected, nearly all participants (95%) endorsed the best-interest standard. Also, in congruence with current trends in favor of joint custody, 62 percent reported a preference for joint custody and only 12 percent for an award of sole custody to the more suitable parent. As of 1998, all but eight states had a statutory presumption for joint custody,17 including the state from which the current sample was selected. Consistent with current legal mandates for gender-blind rulings,3 only four percent of attorneys endorsed the tender-years presumption (young children should go to mothers).
In terms of what attorneys expect from evaluation procedures, findings were generally consistent with current accepted practice in the field for a comprehensive assessment.2,10–16 More specifically, attorneys endorsed inclusion of the following procedures with a notably high degree of frequency (corresponding percentages presented in descending order): review of pertinent medical/psychological records (100%), interview of the parent(s) (100%), interview of the child(ren) (100%), interview of significant others (e.g., stepparents; 98%), assessment of the parent-child relationship (e.g., interaction observation; 98%), written report (98%), parenting skills assessment (96%), psychological testing of the parent(s) (e.g., personality testing; 91%), psychological testing of the child(ren) (89%), substance abuse assessment (88%), and assessment of the child's parental preference (84%). In contrast, review of pertinent legal documents, provision of a verbal summary, drug screening, and psychological testing of significant others were endorsed as expected parts of the evaluation procedure by substantially smaller percentages of participants (69–65%). However, it should be noted that these evaluation procedures were still expected by the majority of attorneys. Although professional guidelines and not attorney expectations should dictate evaluation procedures, mental health professionals may want to take into account the specific evaluation components endorsed by attorneys in this study.
Regarding expectations for the report itself, attorneys nearly unanimously reported that they anticipate description of the quality of the parent-child relationship (100%), description of the psychological/psychiatric functioning of the parent(s) (98%), and description of the psychological/psychiatric functioning of the child(ren) (96%). Eighty-nine percent of attorneys indicated that they expected participation in a deposition or court testimony. Determination of whether abuse has occurred and clear unequivocal recommendation as to the custody/visitation were also endorsed as among their expectations by 91 and 75 percent of participants, respectively. These results highlight that the majority of attorneys expect bottom-line conclusions from mental health professionals and not merely a summary of assessment findings. Particularly in complex cases involving sexual abuse allegations, mental health professionals should be aware of this expectation, as they may be pressured to make more definitive statements than is professionally appropriate.
We were also interested in learning which specific parts of the custody evaluation report are useful to attorneys. Given the findings just discussed, it is not surprising that 100 percent of participants reported conclusions/summary (e.g., diagnoses) to be useful and 95 percent endorsed the utility of recommendations regarding custody/visitation. In a somewhat unexpected finding, however, 95 percent of participants reported that recommendations regarding psychological/psychiatric treatment were instrumental. The following additional aspects of the report were also reported to be valuable: background information regarding the parent(s) and/or child(ren) (91%), qualitative (i.e., verbal) findings of psychological testing (91%), and specific recommendations regarding visitation schedule (84%). Furthermore, quantitative (i.e., numerical) findings of psychological testing and background information regarding the separation/divorce were endorsed as useful by 79 and 77 percent, respectively, which is surprisingly high, given that attorneys may not be interested in or may be less proficient in interpreting quantitative assessment results and presumably already possess background information. To the best of our knowledge, attorney expectations regarding the evaluation report itself have not been addressed in prior research. This omission is surprising, given that the report may be the end product of the evaluation service that is provided to the attorneys.
In the final set of items, participants were asked to report on the utility of the custody evaluation report in their litigation decisions. Eighty-nine percent of attorneys endorsed the item, "The evaluation plays a large role in my determination to proceed to trial or negotiate a settlement." In addition, 81 percent indicated that they usually use it to negotiate a settlement, and 62 percent use it to proceed to trial.
Limitations, Future Directions, and Conclusions
The primary limitation of the current research is the small and homogenous nature of the sample with regard to gender and racial/ethnic background and state jurisdiction. The sample's size restricts the ability to detect significant correlations and limits the generalizability of findings. The modest return rate also suggests that findings should be interpreted cautiously, as those who responded may differ in significant ways from those who did not respond. The sample selection process extends prior research by ensuring that participants had experience with custody evaluations in particular and not just family law. However, this mutuality of experience also introduces bias, in that the perceptions and expectations of participants who have chosen to utilize custody evaluations in the past may differ in meaningful ways from those of attorneys who have not. It also should be noted that the perspectives of study participants may be based primarily on experiences with our evaluation center, in particular, and the legal mandates of the state of Missouri. In addition, the survey measure used in the current research is exploratory, and thus prior validation research is not available. However, the lack of validation was not judged to be a significant limitation, given the descriptive goals of the study and the use of language familiar to the participants. Finally, the true/false format was chosen for ease of survey completion and clarity of findings; however, it restricts the range of possible values. Future researchers in this area may want to adapt the item-response format to a Likert-scale and attempt to ascertain a larger and more heterogenous sample. Additional matters not addressed in this survey should also be included in future research (e.g., the role of religion in custody disputes).28
Despite the limitations, some important conclusions regarding our primary research questions can be drawn from the current study. First, findings indicate that attorneys are most likely to seek child custody evaluations in the context of allegations regarding physical or sexual abuse or parental fitness. Second, attorneys appear to favor a very comprehensive evaluation procedure that mirrors current practice. Third, attorneys reported finding utility in a surprisingly inclusive evaluation report. The latter finding, in particular, should be of use to custody evaluators who may question whether legal professionals find utility in the details of the assessment findings or are merely interested in global recommendations from experts. Finally, the survey findings suggest that custody evaluations play a significant role in the litigation process, with 81 percent of respondents reporting that they generally use the evaluation report to negotiate a settlement. From a pragmatic perspective, these findings are particularly compelling, given that any time an evaluation results in an out-of-court settlement, the financial savings to individuals and the court system is enormous. Avoidance of a court hearing may also prevent further questioning of children in a forum that is adversarial rather than therapeutic.
Acknowledgments
The authors thank Lisa Saldana, PhD, Brian Waller, JD, and Gwendolyn Cortopassi, BS, for assistance in the current research.
References
Pruett KD, Pruett MK: Fathers, divorce, and their children. Child Adolesc Psychiatr Clin N Am 7:389–408, 1998
American Psychological Association: Guidelines for child custody evaluations in divorce proceedings. Am Psychol 49:677–80, 1994
Shear LE: From competition to complementarity: legal issues and their clinical implications in custody. Child Adolesc Psychiatr Clin N Am 7:311–34, 1998
Schutz BM, Dixon EB, Lindenberger JC, et al: Solomon's Sword: A Practical Guide to Conducting Child Custody Evaluations. San Francisco: Jossey-Bass Publishers, 1989
Painter v. Bannister, 140 N.W.2d 152 (Iowa 1966)
Pruett MK, Hoganbruen K: Joint custody and shared parenting: research and interventions. Child Adolesc Psychiatr Clin N Am 7:273–94, 1998
Derdeyn AP: Child custody in historical perspective. Am J Psychiatry 133:1369–76, 1976
Unif. Marriage and Divorce Act, 402, 9A U.L.A. 561 (1988)
Ackerman MJ, Schoendorf K: Ackerman-Schoendorf Scales for Parent Evaluation of Custody. Los Angeles: Western Psychological Services, 1994
Association of Family and Conciliation Courts: Model standards of practice for child custody evaluations. Fam Conciliation Courts Rev 32:504–13, 1994
American Academy of Child and Adolescent Psychiatry. Guidelines for child custody evaluations. J Am Acad Child Adolesc Psychiatry 36:17–84, 1997
Ackerman MJ: Clinicians Guide to Child Custody Evaluation. New York: John Wiley & Son, 1995
Bricklin B: The Custody Evaluation Handbook: Research-Based Solutions and Applications. New York: Brunner/Mazel, 1995
Goldzband MG: Consulting in Child Custody: An Introduction to the Ugliest Litigation for Mental Health Professionals. Lexington, MA: D. C. Heath, 1982
Stahl PM: Conducting Child Custody Evaluations: A Comprehensive Guide. Newbury Park, CA: Sage, 1994
Ackerman MJ, Ackerman MC: Custody evaluation practices: a survey of experienced professionals (revisited). Prof Psychol 28:137–44, 1997
National Interdisciplinary Colloquium on Child Custody: Legal and Mental Health Perspectives on Child Custody Law: A Deskbook for Judges. Danvers, MA: West Group, 1998
Ackerman MJ, Kane AW: Psychological Experts in Divorce Actions: 2002 Cumulative Supplement. New York: Aspen Publishers, 2002
Koopman EJ, Hunt EJ, Favretto FG, et al: Professional perspectives on court-connected child custody mediation. Fam Conciliation Courts Rev 29:304–17, 1991
Smart LS, Salts CJ: Attorney attitudes toward divorce mediation. Mediation Q 6:65–72, 1984
Lee CM, Beauregard CP, Hunsley J: Lawyers' opinions regarding child custody mediation and assessment services: implications for psychological practice. Prof Psychol 29:115–20, 1998
Kass A: Clinical advice from the bench. Child Adolesc Psychiatr Clin N Am 7:247–58, 1998
Binder RL: American Psychiatric Association resource document on controversies in child custody: gay and lesbian parenting, transracial adoptions, joint versus sole custody, and custody gender issues. J Am Acad Psychiatry Law 26:267–76, 1998
Gardner RA: The Burgess decision and the Wallerstein brief. J Am Acad Psychiatry Law 26:425–31, 1998
Mo. Rev. Stat. 452.375.2 (1975)
McGleughlin J, Meyer S, Baker J: Assessing sexual abuse allegations in divorce, custody, and visitation disputes, in Scientific Basis of Child Custody Decisions. Edited by Galatzer-Levy RM, Kraus L. New York: John Wiley & Sons, 1999, pp 357–88
Gardner R: Family Evaluation and Child Custody, Mediation, Arbitration, and Litigation. Cresskill, NJ: Creative Therapeutics, 1989
Goldzband MG: All God's children: religion, divorce, and child custody. J Am Acad Psychiatry Law 28:408–23, 2000(Erika M. Waller, MA and A)
Abstract
This study attempts to fill a gap in the literature by assessing the perspectives of attorneys regarding child custody evaluations completed by mental health professionals. Fifty-nine attorneys completed an anonymous survey designed to ascertain their opinions about: (1) what factors prompt a custody evaluation, (2) expectations regarding evaluation procedures, (3) the utility of the resultant report, and (4) the impact of evaluations on litigation. Findings indicate that attorneys are most likely to seek child custody evaluations in the context of allegations regarding physical abuse, sexual abuse, or parental fitness. In addition, attorneys reported that they expect a very comprehensive evaluation procedure and find utility in an inclusive report. Finally, survey findings suggest that custody evaluations play a significant role in decisions to negotiate a settlement rather than proceed to trial. Limited available research and current practice related to these findings are reviewed.
Divorce rates in the United States remain high.1 Although the majority (90%) of child custody disputes are settled out of court, a notable percentage involve protracted litigation.2 A detailed review of the complex legal history of child custody disputes is beyond the scope of this article; however, major trends should be delineated. Early presumptions about custody were based on gender bias, with fathers being favored through laws of paternal entitlement. This practice was followed after the Industrial Revolution by a preference for mothers, evident in the tender-years presumption or maternal preference.3 Historical perspectives on the fitness of parents have also been heavily influenced by the perceived morality of the time, resulting in discrimination against homosexual or cohabiting parents.4 Starting in the mid-1960s, the best-interest doctrine was adopted as a gender-neutral, child-centered model for custody decisions. The best-interest standard replaced parental preference, allowing for award of a child to a non-parent, as highlighted in the landmark case Painter v. Bannister,5 in which custody of a child was granted to the maternal grandparents. The first joint custody statute was passed in North Carolina in 19576; however, shared parenting did not gain acceptance until the 1980s. Focus on the child also led to increased appointments of a guardian ad litem (GAL), so that the judicial needs of the child would be considered.7
About this same time, the role of mental health professionals in custody litigation became more pronounced. The Uniform Marriage and Divorce Act,8 passed in 1974, attempted to standardize best-interest criteria. These included consideration of the wishes of the parents and child, as well as the physical and mental health of all parties, parent-child interactions, the child's adjustment in multiple areas of life, and any special matters relevant to parental fitness.9 The increased attention to children's emotional and developmental needs necessitated the involvement of mental health professionals in the legal custody dispute process.7 This article focuses on the role of mental health professionals in providing impartial child custody evaluations at the request of the court or by agreement of all participating attorneys. It is important to keep in mind that regional and individual differences affect the training and practice of custody evaluators. However, standardized guidelines for conducting such evaluations have been established by the American Psychological Association,2 the Association of Family and Conciliation Court,10 and the American Academy of Child and Adolescent Psychiatry,11 as well as by the experts active in the field.12–15 In a comprehensive survey of mental health professionals who conduct child custody evaluations, it was found that the average evaluation takes approximately 21 hours, including time spent in each of the following activities: interviews of relevant parties, psychological testing, observations, review of materials, collateral contacts, writing the report, attorney consultation, and court testimony.16
Little prior research has been conducted to examine the perspective of judges on evaluation procedures.17,18 While judges seek to make a decision in the best interest of the child, attorneys who are not functioning as GALs are looking out for the parents, who are their clients. Attorney opinions regarding mediation have been studied19,20; however, a literature review of relevant databases failed to identify any previous studies in which attorneys' perspectives on child custody evaluation procedures were examined. Lee and colleagues21 evaluated attorney opinions regarding 14 "assessment" items in a sample of Canadian family lawyers. In addition to responses relevant to mediation, attorneys reported that clients should have an independent lawyer, assessment is preferred over litigation, and clients should participate in mediation prior to assessment. However, they did not agree that assessment had beneficial outcomes in regard to settlement compliance, shared parenting, or family relations. Considering variables that contribute to a decision to refer clients to assessment, attorneys in the study ranked items in the following order of importance: allegations of child abuse against the client or against the ex-spouse, availability of quality assessors, allegations of spousal abuse against the ex-spouse or client, interparental conflict, and strength of the client's case. In addition, it should be noted that unpublished data from a survey of attorneys is presented in a recent book supplement.18 In the supplement to their book, Psychological Experts in Divorce Actions (1998), published in 2002, Ackerman and Kane report findings of an unpublished study by Ackerman and Kelley. In that study, attorneys were asked to respond to the same survey administered to psychologists in the Ackerman and Ackerman (1997) study (with appropriate changes in working to assess expectations rather than practices). To the best of our knowledge, this survey has not since been published in a peer-reviewed journal. Although the survey is quite comprehensive, it does not address the utility of specific aspects of the evaluation report or its effect on the litigation process.
The lack of research in this area is a notable gap in the literature, given that attorneys are generally responsible for initiating custody evaluations and that increasing importance is placed on taking into account consumer perspectives when designing services (e.g., in focus group research). In a special issue on child custody published in Child and Adolescent Psychiatric Clinics of North America, the Honorable Anne Kass writes:
Legal professionals and mental health professionals working together in custody disputes have enormous potential to do good... . I believe it is essential for these two professions to work to forge new partnerships in helping families resolve custody disputes more effectively and more humanely. It is difficult, but it is similar to what we are asking divorcing parents to do. A good way for us to teach cooperation is to model it, but first we need to better understand one another [Ref. 22, p 257].
The present research was an exploratory study in which we sought to gain a better understanding of the perspective of attorneys regarding custody evaluations in child custody litigation. The current study extends the work of Lee and colleagues21 in several key ways. First, the study utilized a sample of attorneys who have experience with the American judicial system and custody evaluations in particular, not just family law. Second, the current survey includes a wider range of factors that may lead to a custody evaluation and that have been noted as salient custody considerations in past research,23,24 including parental sexual orientation, relocation, remarriage, and alienation. Matters of child preference and adoption were also included, and a key distinction was made between sexual and physical abuse. In addition, multiple items were included that assessed attorneys' perspectives on the specifics of the evaluation process and outcomes once a decision has been made to seek a custody evaluation. The following primary research questions were examined:
1. What prompts attorneys to seek child custody evaluations?
2. What procedures do attorneys expect will be included in an evaluation and in the report?
3. What specific parts of the evaluation report do attorneys find useful?
4. What effect does the evaluation have on the legal process?
Method
Sample
Potential participants in the current study were identified by consulting the records of a Custody Evaluation Center for the past 15 years. The center, located in Missouri, has been providing custody evaluations in contested cases referred only by attorneys or judges. According to Missouri Statute 452.37525 child custody is based on the following factors: parental wishes, child's wishes, child-family member relationships, the child's adjustment, mental and physical health of family members and abuse history, the child's need for continuing relationships with both parents, parental ability to meet the child's needs, parental relocation intentions, and the likelihood that one parent will allow the child to have frequent and meaningful contact with the other.
A total of 156 attorneys were identified who had represented parents or served as GALs in custody evaluations completed at the center; however, current contact information could not be established for 18 of the attorneys. Thus, an initial subject pool of 138 participants was available. Of this group, 76 attorneys did not return surveys for unknown reasons, 1 declined to participate because of limited experience in the area and 1 because of a negative experience with the evaluation process; 1 had become a judge.
The final sample size was 59, 43 percent of the initial subject pool. The sample composition was 78 percent male (n = 46) and 22 percent female (n = 13) and primarily white (97%, n = 57), with the remaining 3 percent (n = 2) of participants identifying themselves as African-American. No participants were younger than 25 years, 9 percent (n = 5) reported being in the age range of 26 to 35 years, 21 percent (n = 12) in the range of 36 to 45 years, 48 percent (n = 28) in the range of 46 to 55 years, and 17 percent (n = 10) in the range of 56 to 65 years; the remaining 5 percent (n = 3) were older than 65 years. The following information was provided regarding the number of years practicing law: 7 percent (n = 4), less than 5 years; 5 percent (n = 3), 6 to 10 years; 29 percent (n = 17), 11 to 20 years; 42 percent (n = 25), 21 to 30 years; 15 percent (n = 9), 31 to 40 years; and 2 percent (n = 1), more than 40 years.
Procedure
Prospective participants were contacted by mail and asked to complete a brief survey regarding the usefulness of child custody evaluations. They were informed that survey results might be published and were instructed to omit their names from the surveys and to use the return envelopes provided to maintain anonymity. This methodology was chosen rather than informed consent, due to the benign nature of the survey and a desire to reduce social desirability among attorneys who plan to seek evaluations with the center in the future. Approximately two weeks after the initial mailing, a reminder letter was sent in an attempt to improve participation rates. The letter was mailed to all potential participants, because those who had already returned completed surveys could not be distinguished among the anonymous submissions. This research proposal was neither reviewed nor approved by the University of Missouri—Columbia Institutional Review Board (human subjects committee); however, had it been reviewed, it would have qualified for exempt status under 45 CFR 46.101.
Measures
The questionnaire used in the present study was the Child Custody Evaluation Survey for Attorneys. This exploratory measure was designed for the current study, and no information on its reliability or validity is currently available. The questionnaire was reviewed by an undergraduate research assistant and an attorney with experience as a GAL and trial lawyer, who did not take part in the study. Several revisions were made as a result of their feedback. The final questionnaire requested demographic and background information of participants, including gender, race/ethnicity, age range, and number of years in law practice. Participants were then asked to respond to 59 statements in a true/false format (Tables 1, 2). These statements covered topics in the following areas: (1) the attorney's experience with child custody evaluations, (2) their perception of availability of evaluators, (3) the desirability of evaluations from the perspectives of various parties, (4) the impact of evaluations, (5) personal biases, (6) their expectations of the evaluation, (7) their expectations of the report, (8) the usefulness of various report components, and (9) the impact of the report on litigation. Participants were then asked to rank order a list of circumstances that may prompt an evaluation (e.g., parental alienation, sexual abuse allegations) with 1 indicating the most common factor and 11 the least common factor (Table 3). Finally, participants were given an open-ended prompt to record any additional comments they might have.
Data Screening
All survey data were entered by the first author. The data file was then examined for plausibility of ranges, and any errors in data entry were corrected. All returned surveys were deemed to include usable data.
Results and Discussion
Descriptive statistics regarding ranking of factors that prompt custody evaluations (i.e., their perceived purpose) can be found in Table 3. Information regarding survey responses to true/false items assessing attorney perspectives on seeking evaluations and their expectations and perceived utility of the evaluation process can be found in Tables 1 and 2, respectively. It should be noted that the number of respondents (n) varies somewhat because data were missing for some items. Missing data were generally attributable to participants who indicated that a particular statement did not lend itself well to a true/false or ranking format or participants who did not answer but instead provided qualifying information. Subgroup analyses (e.g., whether survey responses differed by gender) were not statistically feasible, given the relatively small and homogenous nature of the current sample.
Purpose of Child Custody Evaluations
Descriptive statistics regarding rankings of factors that may prompt a custody evaluation can be found in Table 3. They are listed in order from most to least common. Sexual abuse allegations and physical abuse/neglect allegations in the context of divorce were endorsed as most common by participants, with mean rankings of 2.96 and 2.98, respectively (see Table 3 for standard deviations and ranges). The high rankings awarded to abuse items is consistent with the only other published study of attorneys' opinions regarding custody evaluations.21 However, in the current research, sexual abuse was distinguished from physical abuse. Both were awarded nearly equal status as the most common problems that prompt an evaluation—a noteworthy finding, given the enormous complexity inherent in investigating sexual abuse allegations within the context of a custody dispute.26 Aspects of parental fitness, including mental illness, alcoholism, and instability as a whole were judged by participants to be nearly as common as abuse in prompting an evaluation (mean (M) = 3.12). Thus, it appears that attorneys rely appropriately on mental health professionals to determine parental fitness, as they are uniquely trained in diagnosing mental illness and in assessing any impact it may have on parenting.
Parental conflict/lack of compliance with court orders (M = 4.41), clear bias of the child/alienation (M = 4.53), and domestic violence (M = 5.12) received the next highest mean rankings. Allegations of spousal abuse and interparental conflict received moderate rankings in the study by Lee and colleagues,21 as well. In addition, the current research highlights the importance attorneys place on matters of child loyalty, such as parental alienation, that may arise in contested custody disputes.27
The remaining factors received significantly lower rankings and included unclear child preference (7.74), parental relocation (7.90), parental remarriage issues (8.26), and parental sexual orientation (8.42). It has been noted in prior research that these are important considerations for mental health professionals who conduct custody evaluations22,23; however, they do not appear to be the key situations that prompt referral, from the perspective of attorneys. Finally, grandparent/adoption problems received the very lowest mean ranking (9.38).
Practice and Utility of Child Custody Evaluations
As can be seen in Table 1, nearly all participants had experience in representing parents and serving as GALs (98% and 95%, respectively). Similarly, 95 percent of participants reported that they had sought an evaluation by a mental health professional as an advocate of the parent and 83 percent as an advocate of the child. Note that 95 percent of participants endorsed the item "I prefer to have all parties involved in the evaluation [versus just one parent or the child(ren)]." This is notably consistent with the views of mental health professionals, who have been found in earlier research almost unanimously to prefer to hold an impartial role.16 Participation of all relevant parties allows the evaluator to make conclusions and recommendations that would not be professionally appropriate in a one-sided evaluation. It is also arguably better for both attorneys and experts that custody evaluators not be viewed as the hired gun of one side or the other.
Nearly three-fourths (73%) of attorneys endorsed the item, "A mental health professional is the best person to conduct a custody evaluation." This suggests a favorable attitude toward the role of mental health professionals as custody evaluators. In future research, it may be of additional interest to provide an open-ended question to ascertain who besides mental health professionals attorneys might call on to provide a custody evaluation. Regarding potential outcomes that are sought from custody litigation, 61 percent of attorneys reported (i.e., endorsed as true) that joint custody is sought by clients most often; 40 percent seek sole custody, 33 percent modification of custody, and 28 percent change of visitation. (Please recall that participants responded to each item as true or false in their view, and thus items are not considered mutually exclusive and do not add up to 100%.)
Attorneys also responded to a series of items exploring factors that may limit the acquisition of an evaluation. "Lack of resources of clients" was endorsed by 98 percent of participants, "excessive cost" by 86 percent, and "lack of available experts" by 64 percent, whereas "lack of faith in such evaluation" and "undue delay in completing the evaluation" were endorsed by only 23 percent and 16 percent, respectively. In the study by Lee and colleagues,21 "availability of good assessors" was given an average importance rating of 5.9 (with 7 indicating "very important"). Attorneys were also asked whether various potential participants (i.e., mother, father, custodial parent, noncustodial parent, and children) usually responded unfavorably to the request for a custody evaluation. The percentage endorsing each of these individuals as having a typically negative reaction was low (less than one-fourth of the sample) with the exception of the custodial parent, from whom 47 percent of the attorneys had noted a negative reaction. Perhaps this is because custodial parents are satisfied with the status quo and fear that an evaluation may result in a loss of parenting time for them.
Of note, 83 percent of participants reported that the evaluation usually helps the child(ren). According to 40 percent of the sample, the evaluation generally has little impact on the child(ren). Only two percent of participants reported that the evaluation usually harms the child(ren).
Attorneys were asked to respond to items assessing their personal opinions regarding the theoretical perspective that should guide custody awards. As expected, nearly all participants (95%) endorsed the best-interest standard. Also, in congruence with current trends in favor of joint custody, 62 percent reported a preference for joint custody and only 12 percent for an award of sole custody to the more suitable parent. As of 1998, all but eight states had a statutory presumption for joint custody,17 including the state from which the current sample was selected. Consistent with current legal mandates for gender-blind rulings,3 only four percent of attorneys endorsed the tender-years presumption (young children should go to mothers).
In terms of what attorneys expect from evaluation procedures, findings were generally consistent with current accepted practice in the field for a comprehensive assessment.2,10–16 More specifically, attorneys endorsed inclusion of the following procedures with a notably high degree of frequency (corresponding percentages presented in descending order): review of pertinent medical/psychological records (100%), interview of the parent(s) (100%), interview of the child(ren) (100%), interview of significant others (e.g., stepparents; 98%), assessment of the parent-child relationship (e.g., interaction observation; 98%), written report (98%), parenting skills assessment (96%), psychological testing of the parent(s) (e.g., personality testing; 91%), psychological testing of the child(ren) (89%), substance abuse assessment (88%), and assessment of the child's parental preference (84%). In contrast, review of pertinent legal documents, provision of a verbal summary, drug screening, and psychological testing of significant others were endorsed as expected parts of the evaluation procedure by substantially smaller percentages of participants (69–65%). However, it should be noted that these evaluation procedures were still expected by the majority of attorneys. Although professional guidelines and not attorney expectations should dictate evaluation procedures, mental health professionals may want to take into account the specific evaluation components endorsed by attorneys in this study.
Regarding expectations for the report itself, attorneys nearly unanimously reported that they anticipate description of the quality of the parent-child relationship (100%), description of the psychological/psychiatric functioning of the parent(s) (98%), and description of the psychological/psychiatric functioning of the child(ren) (96%). Eighty-nine percent of attorneys indicated that they expected participation in a deposition or court testimony. Determination of whether abuse has occurred and clear unequivocal recommendation as to the custody/visitation were also endorsed as among their expectations by 91 and 75 percent of participants, respectively. These results highlight that the majority of attorneys expect bottom-line conclusions from mental health professionals and not merely a summary of assessment findings. Particularly in complex cases involving sexual abuse allegations, mental health professionals should be aware of this expectation, as they may be pressured to make more definitive statements than is professionally appropriate.
We were also interested in learning which specific parts of the custody evaluation report are useful to attorneys. Given the findings just discussed, it is not surprising that 100 percent of participants reported conclusions/summary (e.g., diagnoses) to be useful and 95 percent endorsed the utility of recommendations regarding custody/visitation. In a somewhat unexpected finding, however, 95 percent of participants reported that recommendations regarding psychological/psychiatric treatment were instrumental. The following additional aspects of the report were also reported to be valuable: background information regarding the parent(s) and/or child(ren) (91%), qualitative (i.e., verbal) findings of psychological testing (91%), and specific recommendations regarding visitation schedule (84%). Furthermore, quantitative (i.e., numerical) findings of psychological testing and background information regarding the separation/divorce were endorsed as useful by 79 and 77 percent, respectively, which is surprisingly high, given that attorneys may not be interested in or may be less proficient in interpreting quantitative assessment results and presumably already possess background information. To the best of our knowledge, attorney expectations regarding the evaluation report itself have not been addressed in prior research. This omission is surprising, given that the report may be the end product of the evaluation service that is provided to the attorneys.
In the final set of items, participants were asked to report on the utility of the custody evaluation report in their litigation decisions. Eighty-nine percent of attorneys endorsed the item, "The evaluation plays a large role in my determination to proceed to trial or negotiate a settlement." In addition, 81 percent indicated that they usually use it to negotiate a settlement, and 62 percent use it to proceed to trial.
Limitations, Future Directions, and Conclusions
The primary limitation of the current research is the small and homogenous nature of the sample with regard to gender and racial/ethnic background and state jurisdiction. The sample's size restricts the ability to detect significant correlations and limits the generalizability of findings. The modest return rate also suggests that findings should be interpreted cautiously, as those who responded may differ in significant ways from those who did not respond. The sample selection process extends prior research by ensuring that participants had experience with custody evaluations in particular and not just family law. However, this mutuality of experience also introduces bias, in that the perceptions and expectations of participants who have chosen to utilize custody evaluations in the past may differ in meaningful ways from those of attorneys who have not. It also should be noted that the perspectives of study participants may be based primarily on experiences with our evaluation center, in particular, and the legal mandates of the state of Missouri. In addition, the survey measure used in the current research is exploratory, and thus prior validation research is not available. However, the lack of validation was not judged to be a significant limitation, given the descriptive goals of the study and the use of language familiar to the participants. Finally, the true/false format was chosen for ease of survey completion and clarity of findings; however, it restricts the range of possible values. Future researchers in this area may want to adapt the item-response format to a Likert-scale and attempt to ascertain a larger and more heterogenous sample. Additional matters not addressed in this survey should also be included in future research (e.g., the role of religion in custody disputes).28
Despite the limitations, some important conclusions regarding our primary research questions can be drawn from the current study. First, findings indicate that attorneys are most likely to seek child custody evaluations in the context of allegations regarding physical or sexual abuse or parental fitness. Second, attorneys appear to favor a very comprehensive evaluation procedure that mirrors current practice. Third, attorneys reported finding utility in a surprisingly inclusive evaluation report. The latter finding, in particular, should be of use to custody evaluators who may question whether legal professionals find utility in the details of the assessment findings or are merely interested in global recommendations from experts. Finally, the survey findings suggest that custody evaluations play a significant role in the litigation process, with 81 percent of respondents reporting that they generally use the evaluation report to negotiate a settlement. From a pragmatic perspective, these findings are particularly compelling, given that any time an evaluation results in an out-of-court settlement, the financial savings to individuals and the court system is enormous. Avoidance of a court hearing may also prevent further questioning of children in a forum that is adversarial rather than therapeutic.
Acknowledgments
The authors thank Lisa Saldana, PhD, Brian Waller, JD, and Gwendolyn Cortopassi, BS, for assistance in the current research.
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