A Defense of the Proper Use of Child Custody Evaluations
Raymond J. Havlicek, PhD, ABPP, FAACP
Some analyses (e.g., Tippins, T.M., Whitman, J.P., Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance, New York Law Journal), challenge the use of forensic psychological procedures in child custody disputes, on the basis of a lack of predictive scientific data. These critiques rely upon a narrow position regarding the utility and practicality of custody evaluations. This narrow position is based on the assertion there is no body of acceptable research evidence, which demonstrates the "predictive validity" of forensic assessment based recommendations regarding child custody recommendations and related domestic circumstances. A more realistic broad position is based upon a summary of all forms of validity (not just predictive), as well as a description of the utility of forensic psychological assessment procedures and recommendations derived from a comprehensive view of the nature of child custody conflicts and the assessment methods used to produce recommendations.
The Nature of the Issue: Parents unable to resolve their conflict over who will have responsibility for their children in the context of marital dissolution are themselves most likely in the midst of their own emotional crisis. There is no issue of greater importance to parents than the well being of their own children; or any family issue more distressing than custody litigation. Thus, parental inability to cooperatively address the issue of children's best interests in the context of divorce must reflect the presence of at least an impairing emotional disruption on the part of one or both parties. The basis for this assertion involves parents' probable previous higher level of efficiency in functioning, which enabled their children to have experienced less stressful disruption than during a custody crisis phase. Research demonstrates the detrimental impact of family conflict upon children of divorce. Prior to a custody dispute, parents are probably better at prioritizing their children's needs to avoid experiencing conflict, over whatever interpersonal conflicts the parties may have had with one another. During a custody dispute both parties' ability to continue prioritizing their children's needs diminishes to the point that "winning" becomes more important than adequately attending to the needs of children to be free of conflict, while a custodial decision is agreed upon. "Winning," rather than restored parent cooperation is the result our adversarial system offers, which intensifies rather than heals the injured family interaction. This reversal in itself is a family-interpersonal crisis, which will probably become a legal issue; though it is primarily and acutely behavioral, interpersonal, and emotional in nature. The ideal of a "best interests" solution is frequently utilized to assign custody to a particular parent (i.e., reinforcing efforts at "winning," which intensifies the conflict), rather than to assist conflicting parents regain cooperative decision making control over their children's lives. Widely held professional beliefs regarding the emotional disruption of behavior (which is what typically happens in child custody disputes) are based on the idea that strong negative emotions can impair behavioral, cognitive and emotional efficiency. Some examples of this include reduced vocational functioning possibly reflecting depression, anxiety or substance abuse; impaired parenting possibly reflecting emotional distress; impaired physical health resulting in part from emotional distress, impaired academic functioning resulting from an emotional disorder or ADHD. Many forms of behavioral impairment reflect the presence of strong negative emotions. Why would we not consider the parent gridlock at one of life's most important tasks-cooperatively planning and caring for children's needs in the context of marital dissolution, itself result from the presence of strong, negative impairing emotions? Why would we not consider the presence of strong negative emotions during child custody litigation a judgment impairing condition? If strong negative emotions impaired parents' ability to cooperatively care for their most important responsibility, why would we believe that couple's litigating in lieu of cooperating have sufficient judgment to rationally participate in the litigation?
Background: Prior to the use of neutral mental health testimony, the legal process was primarily about reaching a court imposed resolution to the custody dispute. "Winning," became the goal, which if anything produced judicial decisions with little attention to family dynamics and the damage inflicted on children and their parents by the adversarial process itself. Prior to women entering the work force, custody disputes were most often resolved in favor of mothers. Custody decisions became more complex and demanding as both parents involvement with their children became more similar due to both parents' employment. Fathers began demanding equal opportunity before the Nation's family courts as the once traditional family became the exception rather than the rule. Additionally, as custody conflicts became more common, little attention was paid to the impact litigation distress has upon judgment and decision making, as typified by "position hardening," hyperbole, dramatization, denial of personal responsibility, and resistance to mediation, all of which are reactions commonly observed during custody litigation. Litigation distress interferes with the objectivity required for cooperative, intelligent and appropriate parent decision making. Additionally, the damage of one side "winning" and the other side "loosing" further impairs/impaired parental judgment and hinders/hindered parents from achieving a restoration of their cooperative interactions needed to decide upon their children's future. The failure of parents to cooperate led to the "winner take all" objective the judicial process offered, which when commenced intensified the parents' impairing negative emotions, leading to more harm to them and their children. Additionally, a frequent aftermath of such custody wars was/is continued post judgment parental conflict and failure to cooperate energized by anger and vengeance.
Since the addition of neutral, expert mental health testimony a broader base of professionally derived information became available to courts. This enabled courts to decide upon the credibility of information not otherwise available. Neutral experts are able to add objective and professional perspective to an otherwise complex, distressed and highly partisan process. Forensic information typically includes interviews of the parties and their children, psychological tests, observations, and an evaluation of reports from other professionals followed by an analysis. Additionally, a truly comprehensive report could provide professional assessment and recommendations for handling other relevant circumstances such as substance abuse, domestic violence, sex abuse, discipline problems, parent alienation and parenting education. The state of the art is far from perfect, though it provides courts with a broader, deeper data set upon which to build recommendations for intervention and ultimately, if necessary, to produce a decision. Nevertheless, the primarily adversarial nature of the current system continues to be harmful to families in that what is primarily a failure in parent cooperation can not be resolved merely by the imposition of a decision. Additionally, the adversarial nature of the process may make the acute failure in cooperation chronic and hence more damaging to children.
Regarding validity: Forensic psychological services provided to courts are consistent with the widely recognized competencies of psychologists providing assessment and treatment services to families outside the judicial system. There is published validity research for the methods psychologists use. Psychologists frequently determine and recommend the most effective means to improve parent cooperation and conjoint decision making within as well as outside the judicial system. In all instances, a well documented and constructed forensic report should have as its primary goal a recommended intervention framework (except for those cases where intervention is not possible by virtue of the psychological status of one or both parties), through which the parties may regain their cooperative capacity to plan for their children (by making decisions regarding how the children will be parented) without subjecting them to further conflict. Once parent cooperation has been restored it is likely that parents themselves may make the best decision regarding how their children will be parented post separation. Without implementing a forensically recommended process for restoring parental cooperation in the context of divorce, the parties and their children are left with a process, which may leave the family in worse condition than prior to the litigation. Undoubtedly, the current system predictably makes things worse, while pre and post judgment intervention may make things better.
Prior to the use of expert mental health testimony, courts relied on the arguments of the parties' attorneys, the testimony of the parties and their respective witnesses to reach a decision without any consideration as to the psychological assessment of the parties, nor the impact of the process per se upon the litigants' judgment. Psychologists and courts should seek the initial use of the least invasive measures, which offer the greatest prospect for restoration of parental cooperation, since the best co-parenting arrangement would most likely be made by the cooperating, informed parties themselves rather than a court. Modification of custody should become an issue only when some serious behavioral disability is determined to be present, which would interfere with appropriate parental cooperation. Thus the initial use of the least invasive measures, which offer the greatest prospect for restoration of parental cooperation and decision making would become the goal litigants would come to expect unless some other serious impairing factor was present. Court appointed forensic psychologists should screen divorcing families having having custody disputes and make recommendations as to the appropriateness of a pre judgment parent coordination process, for the purpose of providing alternative dispute resolution, parent education and developing a co-parenting plan. Once a co-parenting plan is developed, agreed to and implemented, modification of custody would most likely be unnecessary.
How does the "broad position" regarding predictive scientific validity intersect with the forensic recommendation for the restoration of the family's functionality? If a family once cooperated sufficiently to enable adequate child development, there is validity to the recommended goal of restoring that cooperation since it is predictable that less impaired parental interactions (as was the case prior to the custody dispute) would benefit children. This formula is an example of the "approximation rule," which states that post-divorce arrangements should approximate the parenting arrangements in the marriage prior to the custody dispute. Interestingly, those advocates of the "narrow position," (e.g., Emery, R.E., Otto, R.K., Donohue, W.O., Disputed Custody, Scientific American, et al) themselves advocate the use of the "approximation rule," as a method for reaching a co-parenting plan without reference to "predictive validity" studies of its appropriateness. In effect, their argument would be that in the absence of "predictive validity" studies to justify the use of forensic custody assessment recommendations, the "approximation rule" should be used. Yet, it could be argued that the "approximation rule" itself is based upon a scientific principle, which states that the best way to predict future behavior is from past behavior; not an uncommon underlying assumption of many well formulated, empirically based forensic reports. Therefore, advocates of the "narrow position" themselves recommend using a procedure, which is based upon a reasonable though assumed scientific principle.
The real reason for the use of the "approximation rule,"
is not the alleged lack of predictive validity of forensic child custody
recommendations; it is used by both critiques as well as advocates of
properly constructed forensic child custody reports precisely because it
does have scientific merit, based on the principle that the best way to predict
future behavior is from past behavior. Forensic psychologists and
parenting coordination professionals, where possible, should be involved in
assisting parents regain effective cooperation with each other,
as much as possible
in keeping with the
"approximation rule." If given time and impetus by
forensic psychologists, and support from courts, and
where appropriate and within the context of a court directed intervention (e.g.,
parenting coordination), as opposed to an adversarial process,
parties to custody disputes may see the self
and family interest in establishing a co-parenting plan, which would assist in
settling the custody dispute. In particular, if the parties themselves understand
that "the best interests standard" will be operationally defined, where
possible, to be the "approximation rule," there would no longer be a
belief that "winning" is the goal. This implies a change within our
judicial culture is
needed, as applied to child custody disputes . Where this process fails to
produce an agreed upon and/or an adhered to co-parenting plan and/or where there are
other indications of interfering/impairing psychological conditions, there is
scientific validity to the statement that a custodial decision must
be made consistent with the recommended application of the "approximation
rule," when parents can not cooperate with one another to achieve an agreement.
Settle or not, divorcing couples would come to believe that some arrangement
consistent with what once existed and worked would become the court's guiding
principle in resolving the dispute if the parties could not reach their own
parenting plan. Thus the incentive for combat would be diminished while the
incentive for cooperation greatly increased.
A modification of our judicial culture would focus divorcing couples upon out of court settlement efforts such as "Collaborative Divorce." If we succeed in modifying our judicial culture, much more interest in "Collaborative Divorce" would develop, further reducing the combat, while increasing the cooperation needed to work out a settlement truly in the best interests of the children.
The "approximation rule" is narrowly defined in terms of establishing parenting plans in both separated spouses' arenas, which "approximate" what once existed when the family physically operated as a single unit. However, the use of a physical, time based criterion to approximate separated families' parenting arrangements with what once existed pre-separation may not capture the totality of the actual psychological benefit each parent had been providing their children prior to the separation. It is well known that conflict, separation and divorce are all quite harmful to children's emotional well being. A plan that approximately provides the same total number of parenting hours for each parent post separation compared to the pre separation arrangement may not provide the same benefit. Hypothetically, if not actually, an arrangement that in the aggregate, provided as much as possible, all the components originally present pre-separation, would be expected to yield the least amount of distress to children post separation. Thus, the "approximation rule" should be redefined to be the recommended post separation parenting arrangement that as close as possible approximates the aggregate of components necessary to restore the children's emotional well being to a point, as close as possible, to what existed pre-separation. Clearly this objective requires the use of trained, sensitive, neutral psychologists who are adept at evaluating children's needs and emotions. The "aggregate of components," is defined as the children's perceived well being in relationship to each parent.
The debate regarding forensic custody evaluations has a purpose: to challenge the use of neutral expert testimony within the judicial process, for what could be the single most important mental health issue in the life of children involved in a custody dispute. The baby should not be thrown out with the bathwater! Ultimately, where psychologists are precluded from providing professionally derived information to assist courts, custody decisions will be based upon the knowledge of a judge, who while sensitive, experienced, well intended, and scholarly in law would be psychologically uninformed, and as such may not have access to the insight and prescriptive experience, trained, highly qualified, neutral mental health professionals have about what is psychologically best for children, particularly in establishing an "approximation" based separated parents co-parenting plan. Additionally, proceedings not having the benefit of neutral, professional expert testimony would not have the advantage of a professionally crafted family intervention (where appropriate), which might restore parental cooperation and lead to co-parenting decision making. Separating parents who regain cooperative decision making may be able to avoid a custody trial. Psychological descriptions, explanations and predictions are not perfect, though neither are the predictions of experts from any of the sciences, including social, biological or physical. Practicality, reduced conflict and restoration of parental cooperation rather than "predictive perfection" should be the validity criteria by which forensic assessment recommendations are judged. These goals would work best within a judicial culture that prioritizes cooperative and approximated outcomes.
Whatever the scientific literature shows about predictive validity; practicing psychologists routinely assist families in crisis improve their circumstances, which in itself demonstrates clinical competence and the presence of validity. Psychologists can not assist unless they posses a valid working assessment of family dysfunction. If mental health professionals could not assist families in crisis it would be hard to argue that these professionals have clinical competence, and anything to add to a custody hearing. However, mental health professionals do routinely assist families. Judges while usually legal scholars, and caring, sensitive professionals, nevertheless are not trained and experienced in either psychology or the prescriptive interventions needed to resolve family conflict. If courts decide not to provide themselves with professionally acquired information they would in effect be restricting the judicial decision making data base to the arguments of the parties. If the predictive capacity of mental health professionals is truly in question so is the predictive capacity of judges. It would be absurd to argue that judges should toss a coin to resolve a custody conflict if it was assumed that neither psychologists nor judges can demonstrate "predictive validity." Courts should weigh and determine the appropriateness and relevance of professional input, which might be deemed to improve custodial, co-parenting and intervention decisions. Additionally, court proceedings not having the benefit of expert mental health assessments would not be able to include, interpret and apply published scientific research regarding what is scientifically known about divorce, separated parenting and their impact on children. An example of this issue would be how to handle cases in which a child resists contact with a parent. The proper use of mental health forensic expertise in the context of custody litigation is the only way in which parents might gain/regain their capacity to cooperatively make decisions (including the establishment of a parenting plan) they deem appropriate. The "best interests" standard calls for courts and forensic psychologists, where possible, to do all they can to restore parental cooperation prior to the institution of an adversarial process.
The issue of the proper methodology for resolving custody disputes is an important and timely issue given the prevalence of divorce and its' well known detrimental effects on children. The real standard for resolving custody disputes should be: how do we best help our children whose parents are in conflict regarding custody. Psychologists assist families in crisis by using assessment and treatment/intervention methods acquired through education, training and experience. Those methods are typically sufficient to bring about therapeutic progress in treatment; so why not utilize those same skills to assist courts bring about improvement in children’s horrific circumstances following the breakdown of their families? To frame the judicial argument for or against child custody evaluations as a "narrow" scientific question based on "predictive validity" is not very illuminating. There is so much more at stake. Psychologists might want to defend the validity of the instruments and methods they rely on in a child custody evaluation, while establishing a sound, rational basis for their custody recommendations. Courts should decide what information is worthwhile considering versus what information is not. Ultimately however, judicial decision making regarding the well being of children should be based in terms of the best interest standard, which I would imagine requires that every relevant and significant source of professional information be considered prior to rendering a decision, which should as much as possible approximate the original family arrangement. This is the real status of the field. Psychologists are good at evaluating, treating, and making prescriptive behavioral recommendations, hence they should be called upon to provide assessment information and recommendations to courts weighing information regarding what is in the best interests of children. Courts should decide upon which forensically derived information is important, applicable, helpful, reliable and valid, as well as decide upon which if any recommendations are appropriate. Court appointed experts should provide assessment information, intervention recommendations and opinions regarding custody, accompanied with information regarding how the "approximation rule" applies to those recommendations. In all cases, the least adversarial interventions should be encouraged within the context of a culture of better expectations.
Finally, since psychologists are demonstrably capable of assisting families and individuals in crisis, the inclusion of psychologists' expertise within the legal system could assist in the establishment of interventions aimed at the restoration of parental capacity to function appropriately before resorting to a custody trial as a last resort.
Raymond Havlicek, PhD, ABPP, FAACP
Clinical & Forensic Psychology