Divorce is a widespread phenomenon in the United States, and its consequences can have enduring impacts, especially on children. In cases where child custody arrangements cannot be mutually agreed upon by the parents, the process can escalate into a highly contentious and emotionally charged matter, often leading to legal involvement. To aid their decision-making in these disputed cases, courts may enlist the expertise of mental health evaluators to assess families and either propose a specific custody arrangement or furnish in-depth insights into the factors that could influence a child’s development within potential custodial environments.
Custody evaluations are often regarded as among the most intricate and contentious issues addressed by forensic examiners. Recent research endeavors have started to pinpoint the key aspects that significantly affect children’s adjustment following a divorce. This knowledge allows psychologists to focus their evaluations more effectively on these critical areas in the future. Nonetheless, numerous questions persist regarding how to best define, measure, and forecast what constitutes the optimal outcome for children concerning custody arrangements.
Divorce and Its Aftermath
In the United States, over 40% of children born to married parents will undergo the repercussions of divorce. Additionally, a substantial but unquantified percentage of children born to unmarried, cohabitating parents will also encounter parental separation. Research indicates that at least a quarter of separating parents will grapple with significant conflicts related to child custody. Nevertheless, the majority of custody matters are resolved through parental agreements, steering clear of the need for legal proceedings. There is an increasing trend towards employing alternative dispute resolution methods, such as divorce mediation, to settle contested cases, mitigating the reliance on court determinations.
Within the legal system, courts can select from various forms of custody arrangements that aim to serve the child’s best interests. These typically distinguish between physical custody, pertaining to the time spent with each parent, and legal custody, which concerns decision-making authority in areas like education and healthcare. Predominantly, children tend to reside primarily with their mothers, although there is emerging evidence of an uptick in single fathers as primary caregivers. Joint physical custody, a custody arrangement subject to considerable debate since the 1980s, appears to be relatively infrequent. It’s important to note that custody arrangements may evolve over time, with the actual living situations sometimes deviating from the initial legal agreements.
Legal Standards in Divorce and Child Custody
Across all U.S. jurisdictions, custody determinations are guided by the “best interests” standard, with the objective of fostering circumstances deemed most beneficial for the children involved. In practice, this standard has proven to be somewhat ambiguous and challenging to implement effectively. To add clarity, some states have started to define the term “best interests” by outlining specific factors that directly influence a child’s well-being. These factors then become the focal points of the custody evaluation process.
In shaping custody standards, many states draw from the Uniform Marriage and Divorce Act of 1979, which outlines a range of factors upon which the “best interests” standard should be based for a particular child (e.g., the interactions and relationships between children and parents). Although the precise standards differ from state to state, there is evidence of a gradual standardization process. State statutes, for instance, often necessitate an assessment of each parent’s present situation (e.g., employment, parenting skills), their history (e.g., caregiving, substance use, domestic abuse), and their mental well-being (e.g., flexibility, overall mental health). Additionally, courts should take into account the child’s preferences regarding placement if the child possesses the developmental capacity to express such preferences. Furthermore, the courts retain flexibility to consider any other pertinent factors. Notably, some experts have raised concerns about the excessive emphasis on a child’s “psychological” well-being, often at the expense of economic, educational, or medical considerations.
While states have identified key types of information crucial for custody decisions, they do not prescribe the methods for gathering this information. For instance, evaluators are typically free to choose their evaluation methods and tests. Similarly, courts do not employ standardized formulas for weighing the presented evidence. This flexibility in applying the law prevents courts from being locked into rigid frameworks that may not adequately address the complexity and diversity of custody cases they handle. However, it has also invited criticism due to the perceived lack of guidance and the potential for subjective biases to influence the decision-making process.
Professional Standards of Practice
In custody cases, mental health professionals assume various roles, including mediators, evaluators, and therapists. The role of the evaluator, in particular, has been acknowledged as exceptionally challenging and associated with disproportionately high rates of malpractice claims. Recognizing the gravity and complexity of this role, several organizations have issued professional standards to guide and govern the diverse participants involved in divorce and custody proceedings.
For instance, the American Psychological Association (APA) has issued comprehensive guidelines for psychologists engaged in child custody evaluations within divorce cases. These guidelines essentially extend the principles of professional ethics to custody-related matters. They outline the evaluator’s responsibilities, emphasizing the need to clarify the forensic (as opposed to therapeutic) nature of the evaluation to all parties involved, ensuring impartial representation of the child, regardless of who engaged the evaluator’s services, and adhering to current best practices throughout the evaluation process.
Furthermore, the Association of Family and Conciliation Courts has published its own set of standards of practice for child custody evaluations. This document provides more extensive guidance than the APA guidelines, recommending specific areas that evaluators should assess.
The American Academy of Child and Adolescent Psychiatry has gone a step further by offering highly detailed guidelines covering both the evaluation process and the content that should be addressed by custody examiners.
The Process of Conducting Child Custody Evaluations
Child custody evaluations encompass a range of data collection techniques, including psychological testing, interviews, and direct observation of the parties involved. The specific procedures employed can vary depending on the jurisdiction and the examiner’s individual preferences. While some examiners may be retained by one party in the dispute, it is more common for the court to appoint a mental health professional to conduct an impartial evaluation of all parties. Typically, the process commences with the collection of collateral information, encompassing the case’s history, the parents’ financial and employment backgrounds, medical records, and school records.
Psychological evaluations frequently incorporate psychological tests, although there is no standardized set of tests universally adopted in the field. Surveys of examiners reveal that many include the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) in their assessments of adults. Intelligence measures are commonly administered to both adults and children. Additionally, a substantial number of examiners employ projective tests with both adults and children, some of which are designed specifically for use in child custody evaluations. The use of these instruments, particularly those created exclusively for custody cases, has been subject to scrutiny by various experts, with questions raised regarding their conceptual and theoretical foundations as well as their psychometric validity. Furthermore, the utilization of standard “objective” tests such as the MMPI-2 and intelligence tests has been questioned due to potential ambiguity or indirect relevance to the legal question at hand, such as determining a child’s best interests.
Examiners routinely conduct interviews with the parents and children involved, and they may also interview individuals close to the family who possess pertinent information. The interviews aim to gather information about the parents’ behavioral patterns, strengths, weaknesses in parenting, and current emotional states. Examiners assess the level of commitment and preparation each parent demonstrates in realistically preparing for custody. In-depth information is sought concerning each parent’s relationship with their children, as well as their interactions with the other parent. When interviewing children, the examiner evaluates their relationships with each parent, their present emotional and behavioral well-being, and their social and educational backgrounds. While younger children are typically not asked to express custody preferences, older children may be queried about their living preferences.
Direct observation is often regarded as valuable for providing additional insight into the interactions between the child and parent. For instance, the examiner may oversee a structured task involving the child and parent and evaluate their interaction during the activity. Some examiners opt for naturalistic observations, visiting the home environment to observe how the parent-child relationship functions in that setting.
Research on Divorce and Child Custody Outcomes
Custody evaluations benefit from insights drawn from diverse research domains. Examiners should possess familiarity with a wide spectrum of research findings and incorporate the most pertinent data into the evaluation process. Research areas of relevance encompass the influence of parents on their children’s development, the intersection of mental disorders with parenting and child well-being, the impact of specific parenting practices on child development, the repercussions of divorce on both parents and children, the consequences of parental conflict on children’s adjustment, post-divorce parenting dynamics, economic factors and remarriage, the effects of access to the noncustodial parent, and the implications of different custody arrangements on children’s development.
Extensive literature exists concerning children’s responses to parental separation and divorce. Unfortunately, the scarcity of clear-cut and unequivocal conclusions, which could inform straightforward recommendations in contested custody cases, is more common than not. Consequently, this overview highlights prevailing trends in this body of literature, with the caveat that these general trends mask substantial individual-level variability.
Fundamentally, divorce appears to be associated with modest increases in various short- and long-term adverse outcomes for children, including externalizing behavioral issues, depression, academic challenges, strained parent-child relationships (especially with fathers), and subsequent difficulties in romantic relationships. It is crucial to note that the precise causal impact of divorce itself on these outcomes remains unclear, as several other factors may potentially account for these negative consequences. For instance, research suggests that the extent of parental conflict may have a greater predictive value for children’s adjustment than the experience of divorce per se. Furthermore, recent research indicates that divorce may lead to enhanced functioning, particularly among children from “high-conflict” families. Children from families characterized by post-divorce amicability tend to exhibit better psychological well-being than those from high-conflict households.
To enhance children’s outcomes, numerous states now encourage families to employ mediation and other non-adversarial methods when navigating divorce and custody arrangements. Some evidence suggests that mediation fosters healthier post-divorce outcomes for families. For instance, post-divorce conflicts tend to be less prevalent in families that opt for mediation compared to control groups. Similarly, noncustodial parents are more likely to maintain regular contact with their children following divorces that incorporate mediation.
Current research is delving into the influence of the frequency of interactions with the noncustodial parent on children’s adjustment. Initial findings propose that economic support carries greater significance than the extent of parent-child contact. While the frequency of contact does not appear to be a predictor of children’s future well-being, the consistent payment of child support emerges as a significant factor.
Further complicating our comprehension of divorce’s causal role in subsequent negative outcomes, research has indicated the presence of “nonrandom selection” into divorce. This implies that many of the issues observed in children of divorce were already evident prior to the separation. Additionally, there is evidence suggesting the involvement of genetic factors, although these factors do not account for all the variations in these outcomes. Lastly, some experts underscore the importance of distinguishing between the elevated levels of emotional distress induced by divorce and the relatively lower levels of psychological disorders that can be specifically attributed to divorce. Although severe psychological impairment remains a relatively infrequent outcome, the prevalence of painful memories, emotional turmoil, and negative assessments of the experience is considerably higher.
- American Psychological Association. (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677-682.
- 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.
- Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: Kluwer Academic/Plenum.
- 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.