SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS

SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS

Part One: A Model for Interdisciplinary Collaboration in the Development of Psycholegal Questions Guiding

Court-Ordered Child Custody Evaluations Jonathan W. Gould

This article proposes a model for the interdisciplinary collnboration of judges, attorneys, and evaluators prior to the writing of a court orderfor child custody evaluation in theformulation of specific psycholegul questions that guide the examination. These questions accurately reflect the concerns of the court, the attorneys, and the parties to the dispute while fruming the evaluation questions within the behuvioral sciences, suitable for evaluation by a mental health professional. Such u model best suits the court by providing information on specific, legally relevant areas ofpurenting, child development, d o r mental health useful to the trier of fact.

The development of a paradigm to craft child custody evaluations within the framework of empirically based behavioral science research and method- ology would provide more robust and useful information to the courts (Gould, 1998a). In the first of a two-part article, it is argued that the courts need to provide an evaluator with a set of specifically crafted, legally relevant questions specifically intended to guide the evaluation. The first step is to involve the parties and their attorneys, the evaluator, and the judge in a pretrial conference. During this conference, a set of evaluation questions addressing specific areas of concern to this particular family are agreed upon and subsequently entered into the court order for an independent custody evaluation.

No matter how skilled a forensic examiner may be, the quality, clarity, and scope of concepts that often guide custody evaluators remain poorly defined. Evaluators continue to struggle with defining what variables, psychological and otherwise, are to be evaluated in custody evaluations (Jameson, Ehren- berg, & Hunter, 1997). The American Psychological Association (APA) (1994), the Association of Family and Conciliation Courts (AFCC) (1995), as well as many state psychological associations (e.g., North Carolina Psy- chological Association, 1994) have developed custody evaluation guide- FAMILY AND CONCILIATION COURTS REVIEW, Vol. 37 No. 1. January 1999 64-73 0 1999 Sage Publications, Inc.

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Gould I PSYCHOLEGAL QUEsTIONS 65

lines. These guidelines generally emphasize children’s best psychological interest criteria and provide general principles for approaching the methodo- logical, procedural, and data-gathering task of the examiner.

CURRENT PROFESSIONAL GUIDELINES

The APA’s “Guidelines for Child Custody Evaluations in Divorce Pro- ceedings” (1994) suggests that the focus of a child custody evaluation is “to assess the individual and family factors that affect the best psychological interests of the child. More specific questions may be raised by the court” @. 677). Toward this end, AF’A recommends an evaluation of parenting fitness, the psychological and developmental needs of the child, and the result- ing fit between each parent’s parenting competencies and the needs of the mi- nor child. To accomplish this goal, a child custody evaluation should involve (a) an assessment of each parent’s capacities for parenting; (b) an assessment of the psychological functioning and developmental needs of the child and the wishes of the child where appropriate; and (c) an assessment of the functional ability of each parent to meet the needs of the minor child, which in- cludes an evaluation of the interaction between each adult and child (APA, 1994).

The AFCC’s Model Standards of Practice for Child Custody Evaluation (1995) suggests that “Child custody evaluation is a process through which recommendations for the custody of, parenting of, and access to children can be made to the court in those cases in which the parents are unable to work out their own parenting plans. . . . The primary purpose of a child custody evaluation is to assess the family and provide the courts, the parents, and the attorneys with objective information and recommendations” (p. 1). Toward this end, the AFCC Model Standards recommend an evaluation to (a) identify the developmental needs of the child; (b) identify strengths, vulnerabilities, and needs of all other members of the family; (c) identify the positive and nega- tive family interactions; (d) develop a plan for custody and access using the strengths of each individual that will serve the best interests of the child(ren) and, within those parameters, the wishes and interests of the parents, and in most situations provide them with an opportunity to share in the upbringing of their child(ren); and (e) through a written report, provide the court, parents, and attorneys with these recommendations and supporting data.

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CURRENT METHODS AND PROCEDURES GUIDING FORENSIC EVALUATIONS

There is increasing professional consensus that a forensic evaluation, in general, and a child custody evaluation, in particular, should include at least five different sources of information (Gould, 1998a, 1998b). The current lit- erature addressing appropriate methods and procedures in civil forensic evaluations identifies the following to be included in a competently con- ducted examination: forensic interview data using a structured interviewfor- ntat (Ackerman, 1995; Gould, 1998a. 1998b); Grisso, 1988; Schutz, Dixon, Lindenberger, & Ruther, 1989); selfreport data (Gould, 1998; Greenberg, 1996; Grisso, 1988); Schutz et al., 1989); standardized psychological tests, which have appropriate basis and relevance to the psycholegal questions posed (Brodzinsky, 1993; Committee on Ethical Guidelines for Forensic Psychologists, 1991; Gould, 1998a, 1998b; Greenberg, 1996; Heilbrun, 1995); collateral interview data and record review (Ackerman, 1995; Green- berg, 1996; Greenberg & Shuman, 1997; Grisso, 1988; Schutz et al., 1989; Shapiro, 1991); anddirectobservatiodduta (Ackerman, 1995; M A , 1994; Committee on Ethical Guidelines for Forensic Psychologists, 1991 ; Gould, 1998a, 1998b; Greenberg, 1996; Greenberg & Shuman, 1997; Grisso, 1988; Schutz et d., 1989; Stahl, 1994).

It is through an understanding of the necessity of each of the five data gathering components that one may reach the most balanced, fair, and justly determined interpretations of the data gathered in a custodial examination.

In summary, there is increasing professional consensus about the data- gathering methods and procedures used in custody evaluations (Ackerman & Ackerman, 1997; Gould, 1998a, 1998b). There is also increasing agreement about the global focus of custody evaluations to assess aspects of the care- taker and his or her functional parenting ability; aspects of the child and his or her functional abilities in a variety of developmentally relevant dimensions; and aspects of the parent-child relationship, with particular focus on the goodness of fit between functional parenting abilities and the needs of the child (e.g., MA, 1994; AFCC, 1995; North Carolina Psychological Associa- tion, 1994).

LIMITATIONS IN DEFINING THE BEST INTEREST CRITERION

As the field of custody assessments struggles with defining methods and procedures that best serve the court's need for admissible scientific informa-

Gould I PSYCHOLEGAL QUESTIONS 67

tion (Gould, 1998a), there is a concurrent struggle to find a comprehensive set of variables, psychological and otherwise, that serve to define the scope and precision of child custody evaluations (Jameson, Ehrenberg, & Hunter. 1997).

A recent study sought to conceptually determine a framework that would organize specific psychological and legal criteria relevant to the best interest of the child standard (Jameson et al., 1997). The authors identified 60 criteria drawn from empirical research and various legal statutes. Practitioners rated the relative importance of each criterion within three Q priori determined scales. These scales were (a) Needs of the Child, (b) Abilities of the Parents, and (c) Relationships Among Family Members. The relational factor was di- vided into two additional areas: Parent-Parent and Parent-Child.

Factor analysis of the Needs of the Child scale revealed two components accounting for 55% of the variance. Factor 1 was identified as Developmen- tal Issues and consisted of items that explored views and preferences of the child at various stages of development. Factor 2 was Basic Needs and included items measuring the emotional, relational, academic, and health needs of the child.

The Abilities of the Parents scale was found to have three factors, which accounted for 52% of the variance. Factor 1, Stability for the Child, contained items reflecting judicial concern for stability of the child and examined the amount of upheaval the child would have to endure if living with one or both parents. The second factor, Parental History, explored parental history as it related to their current ability to function in the role of parent. The third factor, Parenting Skills, explored the parent’s ability to provide the child with supportive emotional and physical environments.

The relational scale’s Parent-Parent subscale had two factors, which accounted for 52% of the variance. The first factor was Sharing Parenting, and the second factor reflected a Conflict-Cooperation dimension. The Parent- Child subscale also revealed two factors accounting for 47% of the variance. Factor 1 reflected concern for overall Quality of Parenting, and Factor 2 fo- cused on Parental Commitment to the Child.

The unique contribution of the Jameson et al. (1997) study is its development of a hierarchical structure of the best interest criteria based on 60 items. The study may greatly assist mental health professionals in their attempts to operationalize specific assessment dimensions within the field of child custody. For example, where the APA guidelines are limited to recommending general categories for consideration, the Jameson model organizes “60 specific criteria derived from a comprehensive review of the behavioral sciences


into three coherent and interrelated areas of assessment” (Jameson et al., 1997, p. 261).

However, the Jameson et al. (1997) study does not define the universe of best interest criteria nor does it help the court or the attorneys to clearly and precisely delineate what is needed in a particular custody evaluation.

Too often, custody evaluators who receive court orders that specify “psychological evaluations of the parents and minor children” do not query the court or the attorney about the substantial concerns that lead to the decision to order an evaluation. Under the presumption that mental health professionals are best able to define the nature and scope of the assessment, evaluators pro- ceed with their “psychological evaluations” without guidance from the court.

The challenge of this article is to acknowledge that this common practice is poor practice. It may reflect a profound sense of professional arrogance among mental health professionals that we, rather than those intimately in- volved in the issues before the court, know how to define the purpose and scope of the evaluation. It may reflect a lack of understanding of the proper role of a forensic specialist in assisting the trier of fact by providing psychological information relevant to the legal issues before the court. Clearly, such professional practice does not reflect the best use of judges, attorneys, and mental health professionals in defining the purpose and scope of a child custody evaluation that provides useful information about a particular family.

It is not uncommon among custody evaluators to receive some variant of the following two court orders. The first, most general order directs that both parties and the minor children shall undergo psychological testing and evaluation in an effort to determine the best interests of the child with regard to recommendations for custody and visitation. A second, somewhat more detailed order directs examination of general areas of behavior as well as custody and visitation recommendations. Often, such an order directs the examiner to assess (1) general mentaYpsychological health and emotional functioning; (2) parenting skills; (3) potential for abusdneglect; (4) bonding between the children and each parent; (5 ) recommendations on child custody; (6) behavioral problems; (7) intellectual functioning; and (8) any other issue that appears appropriate to the psychologist.

Jameson et al. (1997) point out that such a global focus does “not articulate specific, empirically based criteria that may be used to translate the legal statutes that define the best-interest-of-the-child (BIC) criterion into psychological terms and elements to be evaluated” @. 253).

Another criticism of these types of general court orders is that they do not help to clearly define the specific issues about which evaluators may gather relevant data that will be useful to this particular family. For example, in the second example above, the court-or attorneys who drafted the order for the

Gould I PSYCHOLEGAL QUEsTIONS 69

court-asked for an evaluation of “behavioral problems.” An evaluator needs further direction before proceeding with the evaluation. Among the relevant questions to be answered should be, “What are the specific areas of behavioral functioning that are being assessed?“ There is no one data-gathering tool in the behavioral sciences that is robust enough to measure all behavior problems. However, if the question was defined further to reflect, for example, “behavioral problems concerning the parent’s ability to place the needs of the child ahead of his own needs,” the forensic examiner would be better able to tailor the choice of psychological tests and data-gathering tools to focus on answering this specific question.

A common direction from the court is for evaluators to provide information about a parent’s intellectual functioning. Before directing evaluators to test intellectual functioning, there should be specific concerns noted by the court or attorneys concerning the suspected relationship between deficits in intellectual functioning and deficits in parenting competencies. The more clearly these concerns are articulated in the court order, the more precise and useful will be the evaluator’s final recommendations to the court.

COLLABORATIVE, INTERDISCIPLINARY MODEL

The challenge for judges, attorneys, and evaluators is to define the relevant variables to be examined based on the legal questions before the court. A first step is to develop a list of specific psycholegal questions to be addressed in this particular evaluation (Gould, 1998a).

One model is for the judge, attorneys, and their clients, as well as the evaluator, to meet prior to writing the court order. At that meeting, the partici- pants identify a list of legal questions that need to be addressed in the evaluation. With the evaluator’s input, the legal dimensions are translated into psycholegal questions that will guide the evaluation. Once the list of psycholegal questions has been developed and agreed upon, the questions are included by the judge in the court order.

When judges, attorneys, and evaluators adopt a cooperative model to define the scope and precision of the custody evaluation, all parties are better served. The court is better served because it receives information about variables that are specifically relevant to the unique family situation of the present case. Furthermore, it helps to reduce the amount of unnecessary data and information provided to the court, focusing instead on the narrowly defined questions contained in the court order (Gould, 1998a).

Attorneys are better served because they are able to articulate for inclusion in the initial court order a list of questions that directly reflect their client’s


concern about the other party or areas of parenting competency that reveal one’s relative strengths and weaknesses. Furthermore, attorneys are better served because the nature and scope of the evaluation is clearly defined before the evaluation process begins, enabling them to tailor their own investi- gations to parallel that of the examiner. In doing so, attorneys are able to provide more specific collateral data to the evaluator during the data-gathering phase of the assessment.

Finally, evaluators are better served because the evaluation is clearly defined and the terms used within each question are operationally defined in a manner useful to gathering data about specific psycholegal questions. Fur- thermore, clearly articulated psycholegal questions avoid many of the common complaints posed by judges and attorneys about expert witnesses (Gould, 1998a). Among the complaints lodged against evaluators, psycholegal questions may help to avoid complaints such as (a) the unnecessary use of a lot of jargon, (b) answering questions that were not asked, (c) failing to address questions that need to be answered, and (d) overstepping their proper role (Gindes & Otto, 1997).

CASE STUDY

In March 1998, a judge in my jurisdiction appointed me as the court’s expert to conduct a comprehensive custody evaluation. The judge called a meeting of the evaluator, the plaintiff and her attorney, the defendant and his attorney, the Guardian Ad Litem, as well as the attorney and child - custody advocate from the Children’s Law Center, a child advocacy organization.

The purpose of the meeting was to define the questions that would be included in the court-ordered evaluation. In an effort to provide a reasonable understanding of the case to the evaluator, the judge asked each of the attorneys to briefly summarize their representation of the facts and current concerns of the case. Interpretation of the facts was minimized, focusing solely on the factual underpinnings of the case.

Once the facts were discussed and the group agreed that the discussion defined the parameters of the case, the judge directed the evaluator to frame each legal concern into a psychologically meaningful question that could be forensically evaluated. The attorneys and the court’s expert discussed different ways of framing the question and, at times, developed general as well as specific questions (see Table 1). %ice, attorneys raised questions that were relevant to their case but not within the realm of behavioral science. For example, one attorney proposed the following question: “What effect does the

Could / PSYCHOLEGAL QUESTIONS 71

Table 1 Collnbomtive Development of Specific Psychlegal Questions Guiding a Child Custody Evaluation

A. B. C. D.

E.

F.

G. H. I. J.

K. L.

M.

N.

0.

The past and present relationship between the child and each natural parent; The past and present relationship between the child and each stepparent; The past and present relationship between the child and her siblings; The past and present relationship between the natural parents. and projections as to the fea- sibility of each to cooperate with the other regarding the child; The parental capabilities of the natural parents and the degree of capability and support available from their respective spouses; The past and present mental and emotional health of the parents and how same affects their mpeuive abilities as a parent; General parental fitness and competency; Issues of past physical abuse alleged by either parent or chilk Appropriate visitation between the child and a noncustodial parent; Animosity of the child toward either or both parents, or toward the custody and evaluation process; Treatment possibilities to rehabilitate the relationship between the child and each parent; Extent to which either parent may be negatively influencing the child’s relationship with the other parent; The impact of each parent’s current lifestyle choices on the child’s developing understanding of social rules and behavior; Impact of adversity between parents on the child, the maturity of the child, and the chang- ing preferences of the child and reasoning for same; and Such other and fuaher issues as the said psychologist deems relevant and material.

father’s immoral lifestyle, that is, not being married but living with another woman, have on the child?’ The evaluator stated that this question could be quickly disposed of because it was not a psychological question. The question was a moral or community standards question but could not be appropri- ately addressed by the behavioral sciences.

The judge reframed the question. Rather than focusing on immoral versus moral lifestyles, the reframed question was “The impact of each parent’s current lifestyle choices on the child’s developing understanding of social rules and behavior.”

The meeting lasted about 3 hours. The evaluator took the agreed upon questions and, over the course of the next day’s hours, refined them into re- searchable psycholegal questions. This list of psycholegal questions was faxed to the attorneys for their approval. Attorney approval occurred within 24 hours. The first attorney drafted a consent order to the judge within 48 hours, and the order was signed by the judge.

The efficiency of this process speaks for itself. In other cases in which the expert asks the judge or attorneys for a clearer definition of the questions guiding the evaluation, the exchange of letters and debate about the focus of


the questions as well as their wording often takes 4 to 6 weeks, encompassing several exchanges of letters and phone calls. Using the above described process creates at the outset of the evaluation process a common set of questions that clearly and precisely focus the evaluator on the specifics needed to be assessed in a particular case.

As the field of child custody evaluations continues to embrace mainstream forensic psychological methods and procedures, attorneys and judges will find that the quality of information coming into the legal system will be im- proved. They will also find a more logical relationship between the specific psycholegal questions asked; the choice of tools, methods, and procedures used to assess these questions; and the degree of precision of eachrecommen- dation. A recommendation is only as good as the precision of the psycholegal question that it answers. Clearer, better defined psycholegal questions lead to more accurate recommendations.

REFERENCES

Ackerman, M. J. (1995). Clinician'sguide to childcustody evaluations. New York. John Wiley. Ackerman, M. J., & Ackerman, M. (1996). Child custody evaluation practices: A 1996 survey of

psychologists. Family Law Quarterly, 3q3). 565-586. Ackerman, M. J., & Ackmnan, M. (1997). Custody evaluation practices: A survey of experi-

enced professionals (revisited). Pmfessional Psychology: Research and Practice. 28(2),

American Psychological Association (APA). (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist. 49(7), 677-680.

Association of Family and Conciliation Courts (AFCC). (1995). Model standanlsofpractice for child custody evaluation. Madison, Wk Author.

Brodzinsky, D. M. (1993). On the use and misuse of psychological testing in child custody evaluations. Professional Psychology: Research and Practice, 24(2). 213-219.

Conunittee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15(6), 655-665.

Gindes, M., & Otto, R. (1997). Communicating the results of the evaluation with attorneys, courts, parties, or others. Children, divorce, and custody: Lawyers andpsychologists work- ing together (pp. 1353-1371). Chicago, 1L. American Bar Association.

Gould, J. (1998a). Conducting scientij'ically crafred child custody evaluations. Thousand Oaks, CA: Sage.

Gould, J. (1998b). A paradigm for forensic evaluation OfchiId custody determinations. Manu- script under review.

Greenberg, S. (1996, June). ChiU-custody evaluations. Workshop sponsored by The American Board of Professional Psychology Summer Institute, Post Graduate Study in Psychology, Portland. OR.

Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Pmfessional Psychology: Research & Practice, 28,50-57.

137-145.

Gould / PSYCHOLEGAL QUESTIONS 73

Grisso, T. (1988). Competency to stand trail evaluations: A manual for practice. Sarasota, n: Professional Resource Exchange.

Heilbrun, K. (1995). Child custody evaluations: Critically assessing mental health experts and psychological tests. Family Law Quarterly, 29(1), 63-78.

Jameson, B. J.. Ehrenberg, M. F., & Hunter, M. A. (1997). Psychologists’ ratings of the best- interest-of-the-child custody and access criterion: A family systems assessment model. Pm- fessional Psychology: Research & Practice, 28(3), 253-262.

North CamlinaPsychological Association. (1994). Childcustodyguidelines. Raleigh: Author. Schutz, B. M., Dixon, E. B., Lindenberger, J. C., & Ruther, N. J. (1989). Solomon’s sword: A

practical guide to conducting child custody evaluations. San Francisco: Jossey-Bass. Shapiro, D. L. (1991). Forensic psychological assessment: An integrative approach. Boston, M A Allyn & Bacon.

Stahl, €? M. (1994). Conducting child custody evaluations: A comprehensive guide. Thousand Oaks, CA: Sage.

Jonathan Gould, Ph.D., is a practicing forensic and clinical psychologist in Charlotte, North Carolina. He specializes in child custody, sexual abuse, and personal injury evaluations. He is author of the book Conducting Scientifically Crafted Child Custody Evaluations (Sage, 1998) and the upcoming book How to Prepare for a Child Custody Evaluation (Family Law Section of the American Bar Association).

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SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS