Table of Contents
Introduction
This research work deals with the issues relating to child custody cases with a special focus on forensic evaluation in decision making. In cases of disagreement by parents with regard to child custody, courts will intervene and order the issue to be resolved by a legal psychologist, by evaluating all events and parties, to assess the best interests of the child. In this regard, this work scrutinizes the role of courts, forensic psychologists, mental health professionals and scientific experts. In addition, some cases pertaining to child custody decisions will be examined. It is my objective to analyze the factors influencing the decisions of the forensic experts, while arriving at accurate conclusions or recommendations in the best interests of the child.
During the past five centuries, there has been significant variation in the standards employed in child custody cases. This divergence transpired in response to the changes in the cultural, legal, and social systems. In the contemporary period, the courts endeavor to resort to the test of the best interests of the child. However, during this exercise the courts demand a more definitive statement of these child interests. Some of these elements have been expressed by the Uniform Marriage and Divorce Act of 1974. This Act regards the wishes of the children, their interpersonal relationships, and emotional links with their custody competitors, as crucial criteria. Moreover, Goldstein et al. had suggested another group of crucial custody criteria, namely, placing a child with the psychological parent; preserving the continuity of the child’s life experiences and relationships; and implementing rapid, final, and unconditional custody decisions (McDermott, Tseng, Char, & Fukunaga, 1978, p. 105).
While determining the best interest of the child, the court examines several factors. Thus, a court will consider who had been the main parent in raising the child, the parenting skills of the parents, the discipline style of the parent, the prevalence of domestic violence in the home, the offending parent in case of existence of domestic violence, the influence of drugs and drink on the life of the parent, financial capacity of the biological parents, the physical and mental ability or shortcomings of the parents, age and developmental stage of the child, and the living arrangements (Hargan, 2012).
Role of Forensic Experts
The courts may require forensic psychologists to assess parties in civil or criminal cases and to furnish expertise (Fulero & Wrightsman, 2008, p. 30). The American Academy of Forensic Sciences has provided explicit guidelines. Thus, it requires forensic scientists to make statements that are technically correct in every oral or written report, testimony, public address, or publication. Moreover, forensic scientists have to behave in an unbiased manner and abstain from conduct that would be regarded as being partisan or having interest in a case, with the exception of proof of facts and their correct interpretation (Fulero & Wrightsman, 2008, p. 37).
In addition, there are several crucial ways in which forensic experts involved in child custody cases can be differentiated. First, there are consultants and evaluators, and in most of the instances, the courts appoint custody evaluators. The latter can testify during hearings in the case. In fact, a very large proportion of cases are settled after a report has been submitted by the evaluator. Moreover, consultants function as retained experts. Thus, an attorney could hire the expert to obtain consultation services on the case. However, it has been made crystal clear that the expert should not function as a testifying expert (Austin, Dale, Kirkpatrick, & Flens, 2011, p. 51). Such function and service is that of a trial consultant and an expert consultant who is non-testifying.
However, experts can also be retained to conduct a work product review. Whenever, experts conclude that there had been a serious defect in the custody evaluation, they could become testifying expert-consultants. Thus, a certain amount of consultation on testimony and trial strategy could transpire, and this constitutes the function of the testifying expert-consultant as a reviewer. All the same, other experts could be required to furnish instructional or educational testimony on research and professional literature that is pertinent to the case (Austin, Dale, Kirkpatrick, & Flens, 2011, p. 51). Instructional testimony, is in general, a component of the testimony of the reviewer, as well as the evaluator.
As such, it is the objective of psychologists to acquire and preserve specialized competence in their profession. Furthermore, psychologists are required to maintain their general level of expertise acquired during their obtention of their psychology degree and early training. In addition, they have to remain conversant with the contemporary developments in their field. In other words, psychologists have to possess the latest understanding regarding child and family development, child and family psychopathology, the influence of divorce upon children, and the specialized literature on child custody. Moreover, psychologists have to be cognizant of the law relating to child custody (Solotoff, 2009).Thus, it is essential for attorneys to ensure that psychologists are aware and possess copies of the custody statute and the pertinent Court Rules.
In addition, forensic psychologists, during their work in juvenile court clinics, encounter youth placed in the different stages of the civil and criminal justice system, including the recently detained, those on probation, and the newly charged at intake. These youths have been so placed due to mental health issues, such as emergency risk assessment, substance abuse assessment, and initial screening for competency (Tolou-Shams, 2010, p. 6).
Best Interests of the Child Standard
Forensic mental health experts, without exception, have to perform in accordance with the best interests of the child legal standard (BICS). This standard constitutes an ideal that demands consideration regarding the developmental and psychological requirements of every child, instead of presumptively acceding to cultural traditions, parental demands, and societal stereotypes (Austin, Dale, Kirkpatrick, & Flens, 2011, p. 48).
In addition, the BICS can be changed or framed as a general concept or variable, which constitutes an indispensable operation for custody evaluators. These individuals have to define, measure, and demonstrate that the recommended expert parenting plan has the likelihood of being of advantage or of being the least detrimental to the child. Criticism has been levelled against BICS as being highly ambiguous, value-laden, and devoid of an adequate scientific research basis, by the prominent scholars of law and psychology. All the same, the courts have persistently called upon custody evaluators and mental health experts to provide the necessary guidance in these cases. It had been stated by Mnookin that despite the legal problems associated with BICS, it provided the best alternative to decision makers. Moreover, Kelly and Ramsey had pointed out that BICS and other general concepts could be defined and measured theoretically (Austin, Dale, Kirkpatrick, & Flens, 2011, p. 49). As such, custody evaluators measure factors that pertain to the adjustment of children, whilst providing best interest predictions in almost every case.
Thus, the law tends to regard the best interests of children to be their psychological interests; and not their educational, economic, or medical interests. This has been amply demonstrated by the presence of several factors that have been regarded as being pertinent to the best interests of children, and which have been enumerated in the majority of the state laws. These are based upon the Uniform Marriage and Divorce Act 1979, which incorporates the following: first, the wishes of the parent or parents regarding the children’s custody. Second, the wishes of the children with respect to their custodian. Third, the interrelationship and interaction between children and their siblings, parent or parents, and any individual who could affect the best interests of the children in a significant manner. Fourth, the adjustment of the children to their community, home, and school. Fifth, the physical and mental health of the individuals involved (Emery, Otto, & O’Donohue, 2005, p. 6).
Role of Mental Health Experts
Mental health professionals, especially psychologists who undertake psychological testing, should not entertain any doubts regarding the ethical obligations related to the child custody evaluation process. This is essential for providing the best quality services ordered by a court. Such professionals have to be competent, meticulous, unbiased, and should concentrate upon promoting and preserving the best interests of the child concerned (Bucky & Callan, 2014, p. 128).
Whilst conducting such assessments, mental health professionals have been accused of engaging in illegal and unethical conduct, and in some instances this has been attributed to the anger related to the process or its outcome. The majority of the ethical issues associated with civil lawsuits, and licensing board and ethics committee complaints concentrate upon bias, informed consent, asymmetry, finances, confidentiality, timeliness, chemical dependency, omissions, and multiple relationships. There has been an increase in the number of civil lawsuits and Board of Psychology complaints against psychologists engaged in the custody evaluation processes. Kirkland and Kirkland had stated that licensure boards had reported drastic increases in the frequency of complaints over the past decade, with respect to child custody evaluation (Bucky & Callan, 2014, p. 128).
Furthermore, Parens has highlighted the plight of some children, who experience very intense separation anxiety, despite having been prepared for the departure of a parent. Such anxiety could culminate in hostile feelings toward that parent. Significantly, it has been asserted that such intense feelings pertaining to separation and that loss could also be experienced by adults. Moreover, Coan and Allen, had described neurobiological responses to threat, whilst highlighting the critical regulatory function of attachment relations (Bucky & Callan, 2014, p. 131).
The Bowlby notion of reorganization is of considerable importance for mental health professionals associated with child custody evaluations. This is due to its latent value in responding to the unbridled anger of a parent. Shaver and Fraley had highlighted the availability of opportunity for an individual who had experienced a loss, to reorganize and thereby move beyond the primary response to the threat with fear and anger, and thereafter to arrive at a better comprehension of what had actually transpired (Bucky & Callan, 2014, p. 131).
Such progressive development tends to be promoted by the support received by the individual from others. This could be provided by a psychologist who comprehends the evaluation process and its underlying emotional influence on a parent. The psychologists actually engaged in the assessment process can motivate parents involved in a custody evaluation process to benefit from the experiences that facilitate reorganization. This can help parents to respond positively to anger and other negative emotional reactions (Bucky & Callan, 2014, p. 131).These considerations can facilitate mental health professionals to understand angry parental responses in a better manner, and this could render them more supportive than adversarial.
For instance, during the American Psychological Association (APA) Convention in New York in 1995, several papers relating to the MMPI-2 profiles of child custody litigants had been presented. Interestingly, Ackerman and O’Leary provided findings related to nine groups of child custody participants for a total of 122 MMPI-2 profiles. The mean K scores of these groups had ranged from 55.6 to 60.7 (Ellis, 2012, p. 183).
In addition, they presented observations regarding clinical scale elevations, with 3 (Hy), 4 (Pd), and 6 (Pa) scales being the most commonly elevated. Moreover, they had observed that scales 3 (Hy) and 6 (Pa), were in general, elevated more than scale 4 (Pd). Similarly, Caldwell had submitted data that scales 3 (Hy), 4 (Pd), and 6 (Pa) were more frequently elevated in this population (Ellis, 2012, p. 183). These elevations were apparently due to the attempts of the parents to deny and repress their negative personality characteristics, projection of blame on their spouse, inherent feelings of hostility, and suspicion towards the motives of their spouse and even the judicial process.
Step Parents and Custody
Although step parents have to share in the responsibilities of rearing the child, they are not granted any legal rights. For instance, step parents are precluded from signing consent or conversing with teachers. Specifically, step parents are devoid of legal rights to custody, time sharing or visitation, even if the concerned child is unaware of its biological parent. It is left to the discretion of the court to determine if a bond had been formed, as well as the nature of the overall relationship between the child and the parent. It is customary for biological parents to possess more rights than the step parents. The exception arises when step parents establish themselves to be the de facto parents, on account of having raised the child for several years, and which had resulted in bonding with the child (Hargan, 2012). In such exceptional cases, the court may permit visitation or even custody with regard to the child.
Moreover, cases relating to child custody relocation involve several intricacies. This makes the presence of flaws and weaknesses in custody evaluation commonplace. It was discerned that there had been several common errors in the assessment of child custody relocation. These included: anti-relocation confirmatory bias, occasional bias for relocation on the basis of primary parent point of view, insufficient comprehension regarding the finer points of law in the jurisdiction, and inadequate knowledge and application of the pertinent research and literature. It would be beneficial for evaluators to adopt a systematic approach towards their assessment of relocation. Although, a relocation risk assessment model has been in place, a clear-cut approach towards the collection of the relevant data and a comparison of the relative benefits and drawbacks related to the decisional alternatives would have been adequate (Austin, 2016, p. 45).
Furthermore, child custody laws vary from state to state, and there are some factors that are specific to a single or a handful of states. For instance, South Carolina considers the religious beliefs and commitments of the parents. On the other hand, the States of Alabama, Florida, Michigan, North Dakota, and Utah subscribe to the view that the moral character of the parents is significant for the best interests of the children. One of the primary objectives of child custody evaluation is to assess the child and its parents, vis-à-vis these best interest factors (Emery, Otto, & O’Donohue, 2005, p. 6).
The approximation rule, primary-caretaker-parent standard, a presumption in favour of joint physical custody, or some other clear custody rule would invariably have to adopt a specific stance with respect to values that pertain to family life. These values tend to be frequently challenged in a dynamic and pluralistic society. Custody laws had initially adopted an unambiguous and strong stance that favored fathers as property holders, and subsequently, mothers as nurturers. In the contemporary period, there is an absence of social consensus regarding the appropriate family roles for males and females. This has been cited as a reason behind the failure of legislatures to enact a more determinant and clearer custody benchmark (Emery, Otto, & O’Donohue, 2005, p. 24). Apparently, the best interests of children standard encompass a praiseworthy value, namely that of the well-being of children. Nevertheless, this standard, in reality, promotes parental conflict and uncertainty that is opposed to the interests of children.
In addition, some of the States of the Union have commenced to supplant the term custody with other terms, including parenting time, parental rights and responsibilities, and parenting plan. All the same, the majority of the legal authorities and scientific treatises have continued to use the term custody, whilst addressing the resolution of access, caretaking, and decision making in disputes (American Psychological Association, 2017).
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Guidelines of the American Psychological Association
The prevailing presumption that child custody proceedings would culminate in the classic paradigm of sole custodian versus visiting parent has been discarded. Several of the States have begun to recognize some form of shared or joint custody that confirms the caretaking and decision making status of several adults. In addition, the legal system has acknowledged that such disputes need not be solely marital, and as a consequence may not involve divorce. Significantly, some parents may have remained unmarried and may not even have lived together. Moreover, disputes related to child custody could emerge after several years of successful co-parenting, after one parent endeavored to relocate due to various reasons, including those related to employment (American Psychological Association, 2017).
Evaluators of child custody are morally and ethically obliged to abstain from doing harm. With regard to making certain that clinicians conduct their practice in an appropriate and ethical manner, several relevant governing bodies have enacted standards. The APA’s Ethical Principles of Psychologists and Code of Conduct 2002 and the APA’s Guidelines for Child Custody Evaluations in Family Law Proceedings 2010, constitute the most important amongst these standards. Furthermore, the APA has been the prime motivator for several other practice guidelines concerning child custody evaluators, including the Specialty Guidelines for Forensic Psychology 2011 and the Guidelines for Psychological Evaluation in Child Protection Matters 1999.
Legal and Ethical Standards
Whilst making a custody recommendation, experts could provide an assessment that would typically be regarded as unreliable in a criminal context. This could include ambiguity as to whether a specific violent incident had transpired at some definite time (Yanni, 2016, p. 556). It is the practice with the courts to instruct mental health professionals, tasked with preparing a custody evaluation, to provide specific recommendations of suitable remedies.
Thus, an expert’s determination regarding the occurrence of a specific act of violence could influence a custody recommendation or could even prove to be determinative. It is essential for the expert to reveal an underlying conclusion pertaining to the occurrence of a particular instance of violence. In the absence of such disclosure, the court would not be in a position to determine whether the conclusion of the expert had been founded upon scientific procedure or a personal credibility evaluation. The situation is aggravated with regard to cases entailing dueling experts, wherein experts for opposing parties submit competing credibility assessments that support their respective clients (Yanni, 2016, p. 557).
The pride of place in child custody evaluations (CCE) should invariably be granted to the needs and interests of children. Custody evaluators can function as the effective voice of the child via their report. As such, research in the area of child custody has shown that a substantial proportion of adolescents and school-age children from divorced and separated families desire that the they should be heard, and that their requirements and opinions are taken into consideration (Pickar, 2013, p. 35). This has been acknowledged by the authorities, and several states have enacted legislation that ensures consideration of the preferences of children in custody decisions.
For instance, due to the Supreme Court of California’s ruling in Elkins v Superior Court, a revision was effected to the California Family Code. This change stipulated that with regard to children of adequate age and capacity to reason, so as to make an intelligent choice regarding custody or visitation, the court has to accord due weight to the wishes of these children at the time of making an order for modifying or granting their custody. In addition, children who are 14 years of age or older, and who desire to address the court regarding visitation or custody, have to be permitted to do so, unless the court concludes that it would not be in the best interests of these children. Upon ordering a CCE, the rules of court of California specify that evaluators have to permit children to voice a custody preference, regardless of their age (Pickar, 2013, p. 35).
In general, forensic mental health professionals are involved in child custody cases as: court appointed evaluators; and upon being hired by one attorney as evaluators, science experts, or consultants (Fuhrmann & Zibbell, 2011, p. 26).
Moreover, in a particular case of child custody, involving the Deer-Doe family, Dr. Hagan had submitted a 35-page report that summarized his evaluation of this family. Although, this reported had included precise details of the results of the standardized tests, the lawyers concentrated primarily upon the Summary and Recommendations section of the report. This section had stated that there had been substantial evidence to show that Ms. Deer-Doe had been undergoing chronic depression, that she exhibited intense and repressed hostility towards Mr. Deer-Doe, and that she had alienated the children against their father. On the other hand, Mr. Deer-Doe seemed to be well adjusted and keen to promote and preserve the relationship between the children and their mother. In addition, he was interested in being a full-time father and had the competence to function in that capacity (Emery, Otto, & O’Donohue, 2005, p. 12). Therefore, Dr. Hagan had recommended that their son Carlos Deer-Doe had to be placed in his father’s custody, with regular visits from his mother. In addition, Dr. Hagan had recommended that the mother had to necessarily undergo individual psychotherapy.
Melton and other authors have affirmed that forensic evaluations are intrinsically different from clinical evaluations in several aspects. For example, these evaluations are usually ordered by the court. Moreover, these are not necessarily formulated to assist the disputing parties, and their primary purpose is to collect information that could facilitate the court in determining certain issues. The latter include, the manner in which the parent could best meet the needs of the child, and the manner in which parenting time is apportioned. Due to the obligatory character of these evaluations and their specific agenda, the parties involved in these evaluations have a stake in producing a positive impression upon the evaluator (Yohananoff, 2015, p. 128). In order to counter this tendency on the part of the parties, evaluators have been encouraged to adopt a multi-modal approach that involves the use of collateral interviews, multiple tools and psychological testing, which endeavors to establish convergent validity.
Moreover, despite the inherent difficulties associated with child custody work, the evaluator derives several benefits. As such, evaluators are placed in a position to conduct an intensive case study of a family in crisis, and they are provided with an opportunity to exert a positive influence (Pepiton, 2014, p. 95). Therefore, evaluators should never desist from attempting to improve their competences, notwithstanding the duration for which they had been engaged in such work (Pepiton, 2014, p. 96).
Furthermore, several measures to be adopted by evaluators for diminishing weaknesses and potential ethical violations in specific cases, have been identified by Kirkpatrick and colleagues. Some of these being: first, awareness regarding the relevant professional guidelines and standards. Second, an understanding of the applicable laws. Third, knowledge about risk assessment where harm is a concern. Fourth, familiarity with the relevant scientific literature in the relevant areas of concern, such as, child abuse, IPV, substance abuse, attachment, cultural issues, and family dynamics. Fifth, exploration of alternative hypotheses. Sixth, obtention of training and the study of cognitive dissonance and confirmation biases in custody evaluations. Seventh, recognition of the limitations of the evaluation in the report. Eighth, ensuring that recommendations and opinions are based upon data, instead of interpreting data to conform to the preconceived notions (Pepiton, 2014, p. 96). Thus, custody evaluators have to strive continuously to enhance their practice, due to the fact that they enact a crucial function in custody decisions.
Conclusion
There are many stakeholders in child custody evaluations. Many professionals, with considerable expertise in their fields contribute their skills and knowledge to resolve child custody issues in an appropriate and appreciable manner. Thus, forensic evaluations in child custody issues depict considerable variance. These range from short to long drawn out evaluations, and this is determined by the nature of the request. A few of the child custody evaluations are succinct and focused assessment. These are based upon a single clinical interview of the children, each party, some collateral contacts, and minimal record review. On the other hand, some of the child custody evaluations demand comprehensive evaluations that could include psychological testing, home visits, collateral contacts, multiple clinical interviews, and detailed review of records. Nevertheless, the prime objective of these evaluations should be focused on arriving at a decision that would be more desirable in the best interests of the child.
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