Divorce and Child Custody

Divorce is exceedingly common in the United States, and it can have long-ranging effects on all parties involved, particularly children. In those relatively rare circumstances in which child custody issues cannot be resolved by the parents, the process can become even more contentious and emotional and ultimately end up in the court system. To inform its decision making in these contested cases, courts may appoint mental health examiners to evaluate families and either recommend a specific custody decision or provide detailed information about the factors affecting a child’s development within potential custody environments. Custody evaluations are thought to be perhaps the most complex and acrimonious referral questions addressed by forensic examiners. Research has begun to identify those areas that most affect children’s adjustment following divorce, so that psychologists may focus their evaluations on these areas in the future. Many questions remain, however, concerning how best to characterize, quantify, and predict what constitutes the best outcome for children in relation to custody.

Divorce and Its Aftermath

Of children from married parents in the United States, more than 40% will experience the effects of divorce. An untold, but likely larger, percentage of children who are born to cohabitating but unmarried parents also will experience the separation of their parents. Evidence suggests that at least a quarter of separating parents will experience substantial conflict concerning child custody. Despite this, the majority of custody decisions are resolved by parents without resorting to litigation. The use of alternative resolution techniques, such as divorce mediation, appears to be increasing as a means of resolving contested cases, rather than resorting to judicial determinations.

The courts typically may choose from a variety of different forms of custody that are thought to best serve the child. Most states differentiate between physical custody, which relates to the time spent with parents, and legal custody, which refers to rights regarding decision-making capacities (e.g., schooling, medical care). The majority of children appear to live primarily with their mothers, although there is some evidence of increasing residence with single fathers. Joint physical custody, the effects of which have been widely debated since the 1980s, appears to be relatively uncommon. Of note, custody arrangements appear to evolve over time, with actual living situations not necessarily corresponding with the initial legal agreements.

Legal Standards in Divorce and Child Custody

All U.S. jurisdictions determine custody using the “best interests” standard, wherein custody is granted in accordance with the promotion of circumstances that ostensibly are in the best interests of the children. In practice, this standard has been found to be vague and difficult to apply. Some states have begun to operationalize the term best interests by identifying spe-cific factors that have an impact on a child’s welfare. In turn, these factors become the specific focus of the custody evaluation process.

Custody standards for many states are informed by the Uniform Marriage and Divorce Act (1979), which specifies various factors on which the best interests standard for a specific child should be based (e.g., the interaction and interrelation of the children and their parents). Although the specific standard differs from state to state, some evidence of standardization has begun to emerge. For example, state codes typically require an evaluation of each parent’s current status (e.g., employment, parenting skills), history (e.g., in terms of caretaking, substance abuse, spousal abuse), and psychological health (e.g., ability to be flexible, general mental health). The courts also are to consider the wishes of the child concerning placement if the child is developmentally able to express such wishes. In addition, the courts may flexibly consider any other factors found to be relevant. Of note, some authorities have questioned the heavy emphasis on what are ostensibly in a child’s best “psychological” interests rather than on factors such as economic, educational, or medical well-being.

Although the states have attempted to identify important types of information on which to base custody decisions, they do not limit the methods through which this information is gathered. For example, examiners typically are not constrained in their choice of evaluation approaches or tests. Likewise, courts do not have standard formulae for weighting the evidence provided. Such plasticity in the actual application of the law prevents courts from being locked into a formula that inadequately reflects the complexity and variety of the custody situations that they encounter, but it also has raised criticisms concerning the lack of direction provided and the potential for subjective biases to enter into the decision-making process.

Professional Standards of Practice

Mental health experts are involved in custody cases in various roles, such as mediators, examiners, and therapists. The role of the examiner has been argued to be exceedingly difficult and one fraught with disproportionately high rates of malpractice claims. In recognition of the importance and difficulty of the examiner’s role, several organizations have published professional guidelines to inform and direct the various participants in the divorce and custody process. For example, the American Psychological Association (APA) has published guidelines for psychologists to apply in child custody evaluations during divorce proceedings. These guidelines are primarily an extension of the professional ethics code to custody matters. They delineate the examiner’s responsibility in terms of disclosing the forensic (rather than therapeutic) role to the participants in the evaluation, representing the child regardless of who engaged the examiner’s services, and using current best practices when carrying out the evaluation.

The Association of Family and Conciliation Courts has also published standards of practice for child custody evaluations. More extensive than the APA guidelines, this document recommends specific areas that the examiner should evaluate. The American Academy of Child and Adolescent Psychiatry has provided the most detailed guidelines for both the process to be used and the content to be addressed by the custody examiner.

The Process of Conducting Child Custody Evaluations

Custody evaluations may involve a variety of data collection techniques, including psychological testing, interviews, and direct observation of the parties. Procedures vary across jurisdictions and according to the examiner’s preferences. Although examiners may be retained by one party in the dispute, more commonly the court appoints a mental health professional to develop an impartial evaluation of all parties. The examiner frequently begins by gathering collateral information about the history of the case, as well as about the parent’s financial and employment history, medical records, and school records.

Most evaluations by psychologists include the use of psychological tests, although there is no standardization in the field concerning which tests to use or how to interpret and apply the data derived from them. Surveys of examiners indicate that most include the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) in their assessment of adults. Measures of intelligence are frequently given to both adults and children. A significant proportion of examiners also use projective tests with adults and children, some of which have been designed specifically for use in child custody evaluations. The conceptual/theoretical basis and psychometric adequacy of these instruments, particularly those designed solely for use in custody cases, have been questioned by various authorities. More generally, the use of standard “objective” tests such as the MMPI-2 and intelligence tests has been questioned, in that the connection between the test results and the legal question (e.g., what is in a child’s best interests) may be unclear or, at best, indirect.

Examiners usually interview the parents and the children, and they may interview others who are close to the family or who have specific, meaningful information to provide. Information of interest includes the behavioral patterns of the parent, his or her parenting strengths and weaknesses, and his or her current emotional state. The examiner gauges the degree of commitment and groundwork evidenced with regard to realistically preparing for custody. In-depth information is sought regarding the parent’s relationship with each child, as well as how he or she currently interacts with the other parent. When interviewing children, the examiner assesses their relationship with each parent, their current emotional and behavioral functioning, and their social/educational history. Although young children usually are not asked to express custody preferences, older children may be asked to describe what living situations they would most prefer.

Direct observation often is valued for providing more data about how the child and parent interact together. For example, the examiner may have the child and parent perform a structured task and evaluate how well they interact together. Some examiners use naturalistic observations, wherein they visit the home and see how the parent-child dyad interacts in that setting.

Research on Divorce and Child Custody Outcomes

Custody evaluations can be informed by research from multiple domains. Examiners should be familiar with a wide variety of research findings and incorporate the best data in the evaluation process. Relevant areas of research include the influence of parents on their children’s development, mental disorders and parenting, mental disorders and children, the impact of specific parenting practices on child development, the impact of divorce on parents and children, the impact of parental conflict on children’s adjustment, parenting after divorce, economics and remarriage, the impact of access to the noncustodial parent, and the impact of the type of custody arrangement on children’s development.

A voluminous literature exists concerning how children respond to parental separation and divorce. Unfortunately, clear and unequivocal conclusions (which might lead to straightforward recommendations in contested custody cases) typically are the exception rather than the rule. As such, this summary highlights trends in this literature, with the qualification that these general trends belie considerable variability at the individual level.

At the most basic level, divorce appears to be associated with modest increases in an array of short- and long-term negative outcomes for children, including externalizing behavior problems, depression, school difficulties, poorer relationships with parents (particularly fathers), and subsequent romantic relationship dysfunction. Of considerable importance, the causal effect of divorce per se on these outcomes is not well understood, with various other factors possibly explaining these negative outcomes. For example, research suggests that the level of parental conflict exhibited may be more important in terms of predicting children’s adjustment than is the experience of divorce itself. Also of note, some recent research suggests that divorce may actually result in improved functioning, at least among children from “high-conflict” families. Children whose families are cordial following the divorce tend to be psychologically healthier than those from high-conflict families.

To promote better outcomes for children, many states now encourage families to use mediation and other nonadversarial methods of working through the divorce and custody arrangements. Some evidence suggests that the use of mediation helps families emerge from the process in a healthier manner. For example, postdivorce conflict tends to be lower in families using mediation than in control groups. Likewise, noncustodial parents appear to be more likely to maintain regular contact with their children after divorces that employ mediation.

Researchers are currently investigating the impact of the amount of contact with the noncustodial parent on the adjustment of the children. Early findings suggest that economic support is more important than the amount of contact between the parent and children. Although the amount of contact does not appear to predict children’s future well-being, the consistent payment of child support does.

Further complicating our understanding of the causal role of divorce on subsequent negative outcomes, research has suggested that there is a “nonrandom selection” into divorce, such that many of the problems identified in children of divorce were present prior to the separation. Some evidence even has suggested that genetic effects may play a role, although genetic factors do not explain all of the variance in these outcomes. Finally, some authorities have highlighted the importance of distinguishing between the high levels of emotional distress caused by divorce and the relatively lower levels of psychological disorder that seem to be attributable specifically to divorce. Although serious psychological impairment is a relatively infrequent outcome, painful memories, emotional turmoil, and negative appraisals of the experience are quite common.

References:

  1. American Psychological Association. (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677-682.
  2. Emery, R. E., Otto, R. K., & O’Donohue, W. T. (2005). A critical assessment of child custody evaluations: Limited science and a flawed system. Psychological Science in the Public Interest, 6, 1-29.
  3. Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: Kluwer Academic/Plenum.
  4. Otto, R. K., Buffington-Vollum, J. K., & Edens, J. F. (2003). Child custody evaluation: Research and practice. In I. B. Weiner (Series Ed.) & A. Goldstein (Vol. Ed.), Handbook ofpsychology: Vol. 11. Forensic psychology (pp. 179-208). New York: Wiley.