Conducting a Child Custody Evaluation
This chapter describes a recommended process for conducting a child custody evaluation. Evaluating the needs of children and families in custody disputes is complicated, and it requires specialized knowledge and experience. In this chapter the word parties will be used, as custody evaluations may be ordered or stipulated to by grandparents, de facto parents, or guardians.
The Role of the Evaluator
The mental health evaluator is generally appointed by the court to gather and report factual data and form clinical opinions, when possible and appropriate, for the court to use as evidence to render custody and parenting decisions when parents are in dispute about the care of and responsibilities for their children. In some states, each parent hires his or her own evaluator, and in other jurisdictions evaluators are hired with a private consent agreement. It is incumbent on the evaluator to know the laws, standards, and rules governing custody evaluations in the jurisdiction in which he or she practices. One of the first steps in conducting a custody evaluation is being clear about your client. Generally, in most jurisdictions, the court is your client and you report directly to the court. However in some jurisdictions the parents and their lawyers, or a parent and lawyer, are the clients. Important psychological knowledge for a custody evaluator to have includes the following:
• Psychological and developmental needs of children and the impact of temperament, physical, learning, and emotional needs on children and parenting
• Reliable and valid interviewing techniques for children and adults (p. 613)
• Research on risk and protective factors predicting child and adolescent outcomes
• Family dynamics, including impact of relationship dissolution on parents and children, sexual orientation, sibling relationships, and presence of significant others, including extended family
• Effects of interparental conflict on parents and children
• Contribution of personality disorders, mental illness, substance abuse on parenting and co-parenting
• Understanding the types of domestic violence, and the identification of and effects of intimate partner violence on relationships, parenting and the current evaluation process and context
• Effects of child maltreatment/trauma on the psychological needs of children
• Significance of religion and culture on parenting and the lives of the parties
There are a few cardinal rules that guide the custody evaluation process:
• Having an understanding of the legal rights of the parties to the evaluation and of individuals who may be affected by the evaluation process, including the report
• Maintaining an attitude of respect toward all family members, collateral contacts, attorneys, and others with whom the evaluator deals throughout the custody evaluation process
• Avoiding role shifts, such as providing therapeutic intervention, mediation, or consultation in the process
• Maintaining a system of record keeping that is consistent with rules and laws of the jurisdiction in which you practice
• Being familiar with sources of ethical and professional guidance relevant to conducting a child custody evaluation (APA ethical principles of psychologists and code of conduct, 2002; APA guidelines for child custody evaluations in family law proceedings, 2009; AFCC model standards for custody evaluations, 2006; APA guidelines on multicultural education, training, research, practice, and organizational change for psychologists, 2003)
Steps in Structuring a Comprehensive Custody Evaluation
Prior to beginning the evaluation, the custody evaluator secures court orders or consent agreements and reviews their role, the purpose of the evaluation, and the areas of focus. It is incumbent upon the custody evaluator to determine whether he or she has the requisite training and experience as an evaluator in general, and in the areas of evaluation defined by the court order or consent agreement. If the evaluator has had minimal experience, supervision or consultation with an experienced professional is recommended (AFCC, 2007).
The custody evaluator may write to the attorneys, informing them of receipt of appointment and requesting contact information for the parties, and the relevant record, including affidavits, motions, court orders, and evaluations. If the parties are pro se (without attorney representation), the evaluator contacts the parties directly or obtains contact information from the court.
The evaluator begins the evaluation by providing written information about policies, procedures, and fees, including a request for a retainer to cover the anticipated costs of the evaluation, unless the court is paying for the service. A custody evaluation is not a health service and the evaluator cannot complete a claim for health insurance reimbursement. The next step is to review court orders and schedule appointments with each of the parties.
The scope of the evaluation is determined by the court order or consent agreement. At times other issues arise in the midst of a custody evaluation, for example, allegations of abuse or wish to relocate. To broaden the scope of the evaluation, the evaluator will seek the approval of the court or the agreement of the parties and their attorneys.
First contacts with all parties, including collateral contacts, begin with a warning about the nonconfidentiality of the process, in that the evaluator will write a report to the court that may be read by the judge, attorneys, or both parties. In addition, during the process there is no confidentiality between the parties as the evaluator will question each party to (p. 614) obtain information and understand disclosures and areas of concern expressed by anyone who is a party to the evaluation.
Data gathering must use a fair and balanced process with diverse, reliable, and valid methods. Using diverse sources of data assists the exploration and analysis of multiple and divergent hypotheses and claims. To the extent possible, alternating meetings and spending similar amounts of time with each party and in observational interviews helps to maintain neutrality and avoid partiality. There may be reasons why time spent appears unbalanced, and the evaluator should document that in notes and the report. To allow a response, the evaluator brings to the attention of both parties any allegations or concerns that may form the basis for opinion.
The evaluation consists of meetings with each party, with each child, any other adult who performs a caretaking role and/or lives in the residence with the children, parent–child observations and/or home visits, interviews with relevant collateral contacts, especially professionals involved with the children and parents, and review of relevant records.
Psychological testing may be used as an additional source of data. If formal assessment instruments are used, the evaluator should consider the reliability and validity of the instruments and the admissibility of the particular instrument in the court. The testing can be referred to another psychologist who has training and experience in the interpretation of psychological testing in a forensic setting if the evaluator is not experienced or trained in the administration of formal assessment instruments. Psychological testing is one of many sources of data and should only be interpreted in the context of other sources of data, and not as a sole source of information to make conclusions about the child or party.
Careful documentation of each interview, whether face to face or telephonic, is essential and may be subpoenaed for deposition or trial.
Areas for Evaluation
Unless otherwise ordered by the court, it is the capacities of each parent, needs of the children, the parent-child relationship and ability of each parent to meet the child’s needs that are central to any evaluation and form the basis for the parenting plan. One significant consideration is the status quo or current and historical parenting plan. Protecting the child’s continuity of relationships and attachments is a prime consideration (ALI, 2002). That being said, when parents separate, the child will generally never again have the same level and extent of contact with both parents.
The evaluation of each party includes the concerns raised by each of the parties, including facts relevant to the parenting of the children, parenting history, and family history. The child’s developmental, physical, psychological, educational, and social needs require careful evaluation and will be considered in the context of a parent’s ability to meet those needs, while protecting or building the parent–child relationship. A child’s stated wishes and preferences should be considered in the context of the child’s developmental maturity and his or her ability to express his or her wishes independently. Sibling relationships should also be assessed and considered in the context of parenting capacities and responsibilities and different developmental needs and relationships.
Parent–child observations may be done in the home or office, though if there is any question about appropriate home life, the home visit is important. The purpose of the parent–child observation is to sample parenting skills and abilities, including attunement to the needs of the child, developmentally appropriate expectations for the child, and ability to communicate with and manage behavior of children effectively. Generally the evaluator does not have the opportunity to observe the child under stress, so any conclusions made about the parent-child relationship should take that into consideration. Parent–child observations are not conducted when there is a verifiable threat to the child’s physical or psychological safety.
While in-person interviews with each party are necessary to the evaluation, telephonic interviews are often used for interviewing collateral contacts and to receive additional information from the parties. Information from collateral sources can provide confirming or disconfirming data about critical issues raised in the evaluation. The evaluator must weigh the (p. 615) reliability of the collateral data with a focus on the professional contacts, for example, teachers, medical doctors, psychotherapists, and records, including previous evaluations, social service, medical, hospital, school, employment, police and court, criminal offender record information (CORI and CARI), and e-mail correspondence.
Written Report: Facts and Opinions
The report presents the sources of information, including dates and durations of contacts, data collected and organized by person, observations, and interpretation and opinions. Separation of facts and opinions is critical. Opinions must be based upon facts or data obtained in the evaluation. Evaluators identify limitations in data collection and incomplete, unreliable, or missing data. They identify alternative hypotheses with risks and benefits, supported by the relevant facts relating to both parties and the children. Specific information, including time frames, may be helpful when making recommendations for parenting access and responsibilities and treatment.
Considerations for recommendations:
• References to research can inform recommendations.
• Offering alternative hypotheses and predictions about future functioning of the child under different access scenarios may be useful.
• For young children or in cases of child maltreatment, domestic violence, mental illness, or substance abuse, the recommendation may offer a progressive plan for increasing contact between a parent and child based on benchmarks.
• If making treatment recommendations, be specific about to whom, for what, and what kind.
Limitations of custody evaluations include the following:
• Limitations of existing social science research
• Limitations on evaluator’s abilities to make reliable predictions about the future
• Variation in experience and expertise of evaluators
• Variation in experience and interests of judges
The custody evaluator retains all materials gathered and created during the evaluation until 3 years after the youngest child in the family reaches the age of majority, or the period of time required by legal, regulatory, and institutional requirements.
References and Readings
American Law Institute. (2002). Principles of the law of family dissolution: Analysis and recommendations. Newark, NJ: LexisNexisFind this resource:
American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073.Find this resource:
American Psychological Association. (2003). Guidelines on multicultural education, training, research, practice, and organizational change for psychologists. American Psychologist, 58, 377–402.Find this resource:
American Psychological Association. (2007). Record keeping guidelines. American Psychologist, 62, 993–1004.Find this resource:
American Psychological Association. (2010). Guidelines for child custody evaluations in family law proceedings. American Psychologist, 65, 863–867.Find this resource:
Association of Family and Conciliation courts. (2007). Model standards of practice for child custody evaluations. Family court Review, 45, 70–91.Find this resource: