Child custody evaluation (also known as evaluation of parental responsibility) refers to the use of the legal system to resolve questions of the distribution of decision-making responsibility and time with children, often but not always in the context of marital dissolution. This process exists to resolve disputes between two or more adults who have an interest in providing parenting to a child and who cannot agree about how the child’s care should be divided between or among them. They may be divorcing or may have never lived together in the same household (such as when grandparents vie for the right to parent a grandchild whose biological parent is unavailable or when a child is born to two biological parents who were never involved in a live-in or marriage relationship). When adults with a potentially legitimate legal stake in parenting a child cannot agree on how time and responsibility for a child will be divided, the court, acting as parens patriae, must resolve the dispute. Society’s interests are served by ensuring that a child’s care is provided by caregivers who are able and willing to put the child’s best interests ahead of their own.
Best Interests of the Child
All 50 states focus on the best interests of the child in making determinations regarding parenting time and responsibility. The “best interests of the child” standard is, however, an indeterminate one. States may define the child’s best interests by statute or may leave the determination to the judge to make on a case-by-case basis. Child custody matters are decided by judges in 49 states; in Texas, either party can elect to put the matter before a jury.
In 1973, the National Conference of Commissioners on Uniform State Laws published the Uniform Marriage and Divorce Act, in anticipation of its adoption in a large number of jurisdictions, and in the years that followed, a number of states adopted parts of the act to assist courts in custody determinations. Section 402 of that act specifies that the court consider, as relevant to determining the child’s best interests, the wishes of the child; the wishes of the parents; the interaction of the child with parents and siblings; the child’s adjustment to home, school, and community; and the mental and physical health of all persons involved. Many courts continue to rely on these or variants of these factors in deciding parenting time and responsibility disputes.
A Historical Review of Custody of Children
In English common law, children were considered to be chattels, or possessions of their parents. They were a commodity or resource when they were able to work or otherwise generate income for their parents and a liability when they were not productive. Since the property of a married couple was considered to belong to the man of the house, children were their father’s possession.
This notion of children as chattels carried forth to the United States, and the government was loathe to intervene in matters regarding the care and control of children, perceiving those matters to be of concern to their owners, their parents, or more particularly their father. However, with an awakened appreciation of the importance of the mother in meeting the needs of infant children, the tender years doctrine, holding that children of tender years generally required the care of their mother because she was endowed with those natural qualities that were important in the nurture of young children, gradually displaced the children-as-chattels doctrine. With increasing frequency, mothers were awarded custody in contested cases. Coincident with the rising divorce rates in the United States, mothers began almost universally to win custody of the child unless fitness could be successfully challenged. Fathers ordinarily bore an inordinate proportion of financial responsibility, taxed to them in the form of alimony or child support. Their access to the child was often restricted to “visitation,” which marginalized their involvement in parenting to the point that visiting fathers were referred to by Michael Lamb as “Disneyland Dad.”
The pendulum began to swing away from the tender years doctrine, however, with several societal changes. As more women entered the workforce, parents increasingly shared responsibility for the home and child care. When marriages ended in divorce, involved fathers sought meaningful postdivorce contact with children reflective of their preseparation child care roles. Second, the roles of children had changed substantially—from field hands in the agrarian life of colonial America or workers in the Depression era middle class to emotionally cherished members of the family. With the postwar societal interest in improving the quality of life, Dr. Spock’s advice on parenting, and a proliferation of self-help books to enhance emotional fulfillment, there was increased attention paid to children’s emotional needs and to the role that each parent played in meeting those needs. Divorcing parents argued for a stake in childrearing based on their claimed fitness to meet various facets of the growing child’s emotional needs.
Thus, the two-parent workforce, the shift in fathers’ roles, and the recognition of the child’s emotional attachment to both parents all converged to usher in a new era. State legislators increasingly recognized that it no longer made sense for the child to be in the sole custody of one parent, with contact with the other parent occurring through weekend visitation. Joint custody, in some form, became an option in every state. Disputing parents might be awarded either equivalent or joint legal decision-making power, equal or near-equal time with the child, or both, unless one parent was demonstrably incapable of providing such responsibility or care. There was increasing recognition of the importance of both parents in the child’s healthy development, and the courts searched for ways to maximize the positive contributions of each parent in postdivorce or coparenting arrangements.
The migration from sole to joint or shared custody outcomes has been a rough journey. It is understood that among divorcing parents, the vast majority resolve questions of parenting without the court’s assistance, and only a small number seek the court’s resolution of the dispute. Among those who need assistance, some return again and again, filing further motions for modifications of earlier rulings or alleging contempt of court, alleging failure to follow the court’s orders. These high-conflict parents may also appeal against rulings of the court, and their disputes take up about 95% of the family court’s time and resources.
Of primary concern with high-conflict families, however, is not the monopoly of the court’s time but the great damage done to the children who are subjects of the ongoing child custody litigation and conflict. Exposure to preseparation and postseparation conflict between their parents is the most reliable predictor that children will develop emotional and behavioral problems stemming from divorce. The courts, recognizing this toll on the children, have sought ways to assist the high-conflict families to find more constructive and successful paths to resolving their difficulties.
Currently, there is a trend under way, manifested by the removal of the language of “custody” and “visitation” in the statutes of several states, to try to move these matters away from the climate of adversary proceedings, where the winner takes all and the loser— the marginalized parent who is allowed to visit with his or her child—goes away almost empty-handed (often nevertheless paying the greater portion of child care costs). Statutes in these states refer to parenting time and responsibility determinations and strive to find a solution that best reflects the sharing of parenting, with each parent making a meaningful contribution to the child’s well-being. The courts may require or at least solicit parenting plans to be submitted by each parent, to increase the parents’ involvement in decision making and to help the parents focus on the needs of the child and the long-term commitment to shared parenting. The courts may order mediation or some other form of dispute resolution to attempt to provide the family with a nonadversarial method for resolving the question of how this coparenting will occur, presently and as the children grow older.
The Role of the Psychologist
Psychologists’ participation in these matters began with therapists offering opinions to the courts about a child’s needs or wishes, or an adult client’s presumed fitness to parent. The other parent in such matters soon discovered the value of obtaining expert testimony to rebut that of the therapist and would take the child to another therapist in search of helpful testimony. The emergence of dueling experts soon burdened the court with trying to determine which expert opinion seemed to have more credibility or to deserve greater weight. Before long, both psychologists and judges recognized the value of a court-appointed expert serving in a neutral role to assess the parents and children in the matter, in order to investigate the claims of each parent about the parenting capacity of the other parent or the child’s needs or wishes. Between the mid-1970s and late 1980s, it became increasingly common to see court-appointed custody evaluators taking the place of testifying therapists in these matters. It is now well accepted that the therapist may have limited data on which to base actual recommendations regarding parenting time or responsibility.
Comprehensive Evaluation of Parental Responsibility
When disputes about parenting time and responsibility are not resolved by early interventions, such as having each parent propose a parenting plan, mediating the areas in dispute, and working to resolve issues through other forms of intervention, the next step is the court-ordered child custody or parenting responsibility evaluation. Since the more benign matters are resolved through these lower levels of contention, what remains for the custody evaluator are the most intransigent matters. These often involve allegations of sexual abuse of a child; alienation by one parent of the child’s affections toward the other parent; allegations of domestic violence; or requests by one parent to relocate, with the child, to another city or state or even, in some matters, a different country. These difficult cases may be referred by the court for a comprehensive custody evaluation or evaluation of parental responsibility.
The comprehensive evaluation may take place over several weeks or even months. The process is preceded by a full disclosure to the parties of the purpose and nature of the evaluation, the limits of confidentiality, the potential range of outcomes, and the fee arrangements. The evaluator schedules appointments with each adult caregiver who is party to the suit and each child for an interview and testing, observation of interactions, and follow-up inquiry regarding matters in dispute. Collateral or third-party sources of information are sought, including records of previous court hearings, school records, mental health treatment records, and medical records for issues relevant to the dispute. Additionally, the parties may present other records, such as records of their communications with one another, recordings of exchanges, and other such materials. The psychologist may also consult teachers, child care workers, coaches, pediatricians, therapists, neighbors, and relatives who may have relevant information.
While psychological testing is not explicitly required in these evaluations, it is often included in the assessment techniques. Although no specialized tests of the best interests of the child or child custody fitness have been developed that meet established psychometric standards, some efforts have been advanced. When psychological measures are employed, instrument selection is driven by an appreciation of the importance of the relevance and reliability of the instrument for the purpose. Commonly used instruments include the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the Personality Assessment Inventory (PAI), and the Millon Clinical Multiaxial Inventory-III (MCMI-III) for assessing personality characteristics of the parents; the Parent-Child Relationship Inventory, the Parenting Stress Index, or some other measure of parental attitudes; and the Child Behavior Checklist or Behavior Assessment System for Children for children. Other instruments may be helpful to address special issues such as domestic violence allegations, substance abuse, or childhood depression and anxiety. Comprehensive social history and parenting history questionnaires may also be used to collect parent input in a somewhat standard way. When the inferential leap is too great from what the test measures to the matter at bar, it is advised that the test not be used.
Report of Findings
Finally, the data that have been collected are analyzed to develop information useful to the court in its determination of sharing of parenting responsibility and time. The psychologist may stop short of making specific recommendations about how parenting responsibility and time should be apportioned, recognizing the final determination to be a matter for the court to decide. When there are sufficient data to substantiate a specific recommendation, however, there is no legal bar to offering it.
Variations on the Nature and Forms of Families
Disputes regarding parenting time and responsibility are not limited to divorcing biological parents. Adoptive parents, noncohabiting parents, grandparent caregivers, estranged grandparents of a child with a deceased or incapacitated parent, gay and lesbian parents, and many other configurations of families may seek the court’s assistance in settling matters in controversy when children’s best interests are at stake. Families may enjoy unique cultural milieus, or there may be specialized concerns, such as a child with special needs or a parent with specific disabilities; all these issues may tax the court’s resources in making particularized and customized determinations that best address the needs of the family whose child’s best interests are in question. The psychologist may also be taxed by these special issues but may also have greater time and resources to invest in investigating their significance. Psychologists are helpful to the trier of fact by accomplishing this comprehensive, case-specific evaluation of parenting time and responsibility.
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