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An Examination of Child Custody Evaluations

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Child custody evaluations are provided when there are disputes over decision making, caretaking and access to a child in the wake of marital or other relationship dissolution. When conducting these evaluations, psychologists are expected to focus on factors that pertain specifically to the psychological best interests of the child (BIOC). Once psychological testing and evaluations are complete, the courts will draw upon these considerations in order to reach their own conclusions and render decisions of custody. The system for resolving custody disputes is deeply flawed that go beyond the reasons of limited science. Trying to determine the best interest of the child can exacerbate parental conflict and problems in parenting and co-parenting. Through the Approximation Rule and the Best Interest of the Child (BIOC) Method, psychologists can better recognize the best practices available for custody arrangements. By determining the degree of validity and usefulness of these methods, there must be examinations of past, present, and future trends of the topic, while identifying ways to improve the processes.

While dealing with custody evaluations, psychologists must seek to maintain an appropriate degree of respect for and understanding of parents’ practical and personal concerns; however, psychologists are mindful that such considerations are ultimately secondary to the welfare of the child (APA, 2002). Using the Best Interest of the Child method, we can focus on the childs needs rather than the parents’ wishes. The evaluation processes focuses on all aspects relevant to a family and the parent/child connection. Different families have different values, rules, psychological needs etc. To determine the best outcome for psychological stability in a child, all aspects of the parent’s nature and personality must be diagnosed. It is noted that regardless of who requests the evaluation, or the reasons behind that request, psychologists are ethically obligated to recommend what is best for the child. This means that if a father requested an evaluation, it is possible that they could end up losing custody to the mother if the psychologist reasonably believes they are better off in that living situation. When determining placement, parents are evaluated on numerous factors. These factors include the presence of psychological problems, their relationship between the parent and child, and also the relationship between the parents and whether their post-divorce conflicts have been resolved (APA, 2002). By examining past, current, and future trends of child custody evaluations, we are able to identify the areas of improvement, and the need for scientific data in each.

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Most states use the Best Interest of the Child (BIOC) as the framework for considering contested child custody and visitation decisions. It has been used in almost all jurisdictions in the United States since the 1970’s and is seen by the majority of professionals to be responsive to the individual needs of children and families involved in litigation (Dewart, 2006). Essentially, this method states that judicial determinations should be based off of the best interest of the child and their future, rather than what the parents see as best for them. As there is no clear definition to what the best interest of the child may entail, studies of both the Approximation Rule and BIOC methods have been done to determine the appropriate standard of practice in these evaluations.

Most parents that live apart are able to negotiate custody arrangements on their own or with the help of lawyers, mediators, or other professionals. The reason these evaluations have become more prominent in the last few decades is because of the large number of parents that have a baby before they are married, or they are separated or divorced either before or after the baby has come. Whether it be through media outlets, professional issues, or personal problems; marriages are no longer the sacred and lifelong commitments as they used to be. These evaluations do not have a lot of history behind them as these issues did not arise until truly into the last half century. The vague guidelines provided by the states have made it difficult for evaluators and judges to determine the “best interest” of a child. Typically, custody evaluators will administer an array of tests to parents and children; these may include evaluations and interrogations done by the psychologist, and the results of these tests can also be determined through observation by the psychologist. However, the validity of these tests is called into question as a significant portion of the data is self-report.

When looking at the ACA Code of Ethics in relation to these evaluations, we must consider specific codes regarding the welfare of the child. Section C.2.a. Of the ACA Code of Ethics speaks to counselors Boundaries of Competence. Counselors practice only within the boundaries of their competence, based on their education, training, supervised experience, state and national professional credentials, and appropriate professional experience. (ACA, 2014). In child custody evaluations the awareness of a psychologist’s abilities and biases is important. Are there any personal biases towards this group or members of the family? Is the psychologist able to effectively evaluate each family member in order to determine the best outcome for a child? Does the psychologist have the relevant knowledge and experience to make these decisions? Although these questions come into mind, the biggest question is how are psychologists are able to determine the vague questions of “what is in the best interest of the child?” How they are able to determine what “best interest” means? The coupling of the vague “best interests of the child” test with the American adversary system of justice puts judges in the position of trying to perform an impossible task, and it exacerbates parental conflict and problems in parenting and co-parenting (Brodzinsky, 1993). The BIOC Method mainly focuses on self-report, so it is hard for psychologists and judges to determine what is true and accurate, rather than a person trying to cover up his/her faults. When put under a microscope it is safe to say that relevant information may be skewed or inaccurate as the parents may not want certain information brought to light.

Since these evaluations require a psychologist to work with all parties involved in the case, psychologists must also be wary of multiple relationships. Psychologists generally avoid conducting a child custody evaluation in a case in which they served in a therapeutic role for the child or his or her immediate family. This should not, however, preclude the psychologist from testifying in the case as a fact witness concerning treatment of the child (APA, 2002). In addition, the psychologist should not take on any involved participants (parent or child) on as a therapy client outside of the evaluations. Occasionally the court may require a psychologist to testy in court as a witness to the information brought to judge. If the psychologist has worked with a family member outside of the child custody evaluation, the judge may see them as an unfit witness in the case due to the multiple relationships the psychologist has with a family member. If the psychologist were to engage in a relationship outside of the evaluation process with a family member, they would not be able to testify as an expert witness. Guidelines have been put into place regarding the processes of child custody evaluations, including the responsibilities of the psychologist as well as the families involved.

Conducting a child custody evaluation can take a lot of time and resources, however, the procedural guidelines put into place regarding these evaluations can help us evaluate through the processes in a timely manner. (Grisso, 2002) explains these steps, and the process that each evaluator must go through to perform the evaluation. Psychologists must begin by obtaining informed consent from all the adult participants, as well as the child participants as needed. Section E.3 of the ACA Code of Ethics highlights the importance of informed consent and how it impacts each family member. Secondly, the psychologist must explain the limits of confidentiality within these evaluations (explained in section B.1.d. of the ACA Code of Ethics). Due to the nature of the evaluations, evidence from psychologist testing or observation may be used in a court of law if the psychologist is asked to testify as an expert witness. Furthermore, data gathering is necessary to interpret the nature of the parent/child relationship. If there are any personal biases or opinions that the evaluator may have, they need to determine if they can effectively do their job without them getting involved, and if they cannot, they must excuse themselves from the evaluation. Finally, the psychologist will give recommendations to the court based off of the data gathered from the parent/child. These processes are helpful, however they are still rigid. There is not much empirical data regarding these evaluations, due to the open-ended nature of them. Scientific data is lacking and therefore it makes it difficult to determine the best tools for evaluation

The best evidence on how child custody is decided in the context of divorce comes from Maccoby and Mnookin’s (1992) study of 1,124 families with children in which the parents filed for divorce in two California counties in the middle 1980s. More than three quarters of these cases were settled outside of the court due to the mediation that was demanded before a custody hearing began – which speaks to the relevance of mediation and why it’s so important. Since 1981, California law has mandated that mediation be attempted before a custody hearing can be held before a judge; an additional 11% of the cases were settled in mediation, while 5% of the cases went the next step up in the hierarchy of legal conflict—a custody evaluation—before reaching a settlement. A judge decided less than 2% of the cases post-mediation (Maccoby & Mnookin, 1992).

These findings are limited to only a two-county sampling, which may seem like it is not a wide range of data. If these samplings came from more than two counties there is good chance that a similar outcome would occur. With societal expectations and the laws rapidly changing, we need to be able to highlight the differences between going straight to court and going through mediation beforehand. Mediation can provide an outlet for families to work through their issues without the legal system becoming involved, giving the families an opportunity for private settlement. Following a separation, parents should seek counseling to determine the best living situation in a private manner, rather than involving the children. If they are able to do this in a mediation setting, it would not only save money (as these evaluations tend to creep into the thousands, if not tens of thousands), but it would keep the child emotionally uninvolved. These solutions call for the need of clinical assessments that are less self-report, and more scientifically supported. When it comes to the Best Interest of the Child, self-report is a large portion of the data collected, while using the Attachment Rule is more scientifically based.

The validity of these clinical assessments has also been called into question. A number of topics must be taken into consideration when providing these evaluations; (1) examinees may be less candid in their responses (including in psychological tests); (2) tests that do not include measures of response style are vulnerable to dissimulation; (3) characteristics that may change over time (e.g., parental depression) which may be caused by the period of high stress during the processes (Davies, 2002). All of these topics may impact the responses within these evaluations; therefore psychologists must keep in mind the high stress nature of the process of these evaluations. By providing a clearer and more scientific form of testing, we can better evaluate the child and the nature of the parent/child relationship with more factual and determinative solutions. However, private settlement is ultimately the goal of child custody proceedings. Private settlement can stem from mediation between the parents and children or even engaging in family therapy sessions.

Private settlement of custody disputes should continue to be promoted through good-faith negotiation, education, and alternative dispute resolution. This cannot only reduce conflict, but it can help to encourage a more cooperative and on-going relationship between the parents/guardians. With mental health professionals and legislatures working closely together to adopt clearer and more definitive custody rules, we can significantly reduce the need for these processes. One of the ways we can do this is by clarifying the terms of a marriage contract. We can do this by determining which family member has more responsibility for the child or determining the involvement of each individual. While this may seem rigid and unfair, it could be a way for the judicial system to track families and their responsibilities when it comes to the children. Not only would it limit the need for custody evaluations and narrow the scope of the evaluation process, it would provide clear cut processes to determine custody upon separation.

High conflict divorces make it very hard for anyone in the judicial system to determine an outcome. It’s hard for psychologists to remain objective when presented with determinative facts. The Best Interests of the Child (BIOC) is the most-often used standard employed in custody decisions. The BIOC is based on the consideration of the evolving needs and environment of the child. In addition to the BIOC Method, the Approximation Rule is based on Attachment Theory and, in contrast to BIOC, considers the past to be the primary and most important determinant of the future parenting behaviors (Dewart, 2006). The American Law Institute recently embraced the term “attachment theory” and this theory would help track post-divorce parenting arrangements and approximate parenting involvement inside the marriage. The Approximation Rule is different to the BIOC as it mirrors the parents needs and decisions over the child’s. The problem found with this method is that the judicial system has always tried to determine the best interest of the child over the parent, so by changing the BIOC method to the Approximation Rule would completely contradict everything the judicial system has put into place regarding these outcomes. While BIOC allows for multiple factors to be considered by the courts, it does not mandate which should be considered the most important due to its open ended nature (Kelly & Ward, 2002). Those who believe in the approximation rule believe that stability will come more so from the communication of parents than the child themselves. As previously stated, this method would completely contradict the current methods in place. Since the BIOC Method is more open-ended in its nature, it makes it more difficult for the courts to determine the outcomes. Each case in child custody evaluations is determined differently due to the data being significantly different in each situation. No child is going to have the same evaluation and interrogation as another; each is specific to the child and their needs. The laws are unclear when it comes to custody disputes, as a lot of the information is widespread and the data is self-report.

When child custody laws are more clear and determinative, we can substantially reduce the number of custody disputes. Findings from (Dewart, 2006) indicated that the use of the Approximation Rule is not as beneficial as the BIOC method, due to the high nature of involvement from the parents. Not only does this dynamic not consider the possible imbalance of authority between the parents, but it could allow one of the parents to make more of the decisions and keep the other parent uninvolved. While the BIOC Method is not perfect, it involves the child in a significant role when making a custody decision – rather than relying on the cooperation of parents and the possible imbalance of power over one antoher. Overall, the current debate tween the BIOC and the Approximation Rule should be taken into consideration for future evaluation methods. Each method has its usefulness; however, follow up from longitudinal studies will be necessary to determine which process of evaluation is the most beneficial to the child.   

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