It is more likely than not, according to current research, 2 that judges presiding over contested custody cases will have to grapple with two related questions:
In at least some cases, you may decide to use formal custody evaluations to assist you in answering those two questions: to frame the issues; gather the relevant evidence, analyze and synthesize it; and offer it to you in a format that will facilitate your decision making. The primary function of this tool is to help you determine whether ordering an evaluation in such a case is appropriate and, if so, how to become a more critical consumer of the evaluation—not just in cases in which there is a record of domestic violence, but also in cases in which domestic violence is alleged, or where the presence of other “red flags” raises a suspicion of domestic violence.
The quality of custody evaluations, therefore, is of critical importance. Yet, not all the experts on whom courts rely have the training and experience needed to collect the evidence adequately, evaluate it competently, or make well-supported recommendations.3 This is particularly true when a case involves domestic violence.4 Although it may be your experience that certain custody evaluators with whom you have worked in the past are good, it remains imperative that you critically examine all custody evaluation reports.
This tool will help you:
By becoming a more demanding consumer, you will also assist the evaluators on whom you rely to increase their expertise in this difficult work.
Clare Dalton, LLM George J. and Kathleen Waters Matthews Distinguished University Professor of Law
Leslie M. Drozd, PhD Psychologist
Hon. Frances Q.F. Wong Senior Judge
National Council of Juvenile and Family Court Judges
Mary Mentaberry Executive Director
Billie Lee Dunford-Jackson, JD Co-Director Family Violence Department
Maureen Sheeran Co-Director Family Violence Department
Jill D. Comcowich, JD Policy Analyst Family Violence Department
Nadia Abdelazim, JD
Custody Advocate Program
Children’s Law Center
Charlotte, North Carolina
Michael W. Arrington, JD
Parkowski, Guerke & Swayze, P.A.
Jacquelynne Bowman, JD
Greater Boston Legal Services
Travis County Domestic Relations Office
Hon. Mike Denton
County Court at Law 4
Shirley Dobbin, PhD
Permanency Planning for Children Department
National Council of Juvenile and Family Court Judges
Lisae C. Jordan, JD
Maryland Coalition Against Sexual Assault
Silver Spring, Maryland
Hon. Phyllis D. Kotey
8th Judicial Circuit of Florida
Alachua County Court
Nancy W. Olesen, PhD
San Rafael, California
Hon. Nancy S. Salyers (Ret.)
Children and Family Research Center
University of Illinois
Hon. Frances Q. F. Wong
Family Court, First Circuit
State of Hawaii
Clare Dalton, LLM
George J. and Kathleen Waters Matthews Distinguished University Professor of Law
Northeastern University School of Law
Leslie M. Drozd, PhD
Newport Beach, California
Rochester Hills, Michigan
Hon. William G. Jones (Ret.)
Charlotte, North Carolina
While there are rules of evidence to direct judges in determining who qualifies as an expert, practical resources are lacking to help judges critically review the expert testimony of child custody evaluators, determine whether the evaluator’s testing methods were accurate and reliable, or tease out the biases of individual clinicians, particularly when domestic violence is involved. This publication is designed to be a practical tool for judges on how to order, interpret, and act upon child custody evaluations and includes bench cards and supplementary materials.
This project would not have been possible without the generous support of the State Justice Institute and its continuing leadership in seeking to improve the quality of justice in state courts and the outcomes for families in crisis. The Family Violence Department of the National Council of Juvenile and Family Court Judges (NCJFCJ) is indebted to all of the people who helped make this publication possible. Special thanks go to the authors, Clare Dalton, Leslie Drozd and Judge Frances Wong, for their dedication; to the Advisory Committee members for their guidance; to our consultants, Shelia Hankins and Judge William Jones, for their enthusiasm and expertise; to Larry Winkler for his graphic design; to the judges and other professionals involved in the Child Victims Act Model Courts Project for serving as reviewers of the document; to the staff of the NCJFCJ Permanency Planning for Children Department for their contributions to this project; and to the many experts across the country and internationally who reviewed the document for their insightful feedback.
The Family Violence Department would also like to thank the U.S. Department of Health and Human Services (HHS) for helping to support this important endeavor. Much of the groundwork for this tool was done through the Resource Center on Domestic Violence: Child Protection and Custody, a project of NCJFCJ and funded by HHS.
In the bench cards provided here, as well as in these supplementary materials, we guide you chronologically through the process, asking with you:
I. Is this a case that would benefit from an evaluation that includes a domestic violence focus?
II. What should the scope of the evaluation be, and whom should I ask to conduct it?
III. How should the final report itself be evaluated? How should I use it?
The cards and the supplemental text use an identical format, allowing you to refer easily from one to the other. The text expands upon the information found on the cards. In order to make full use of this tool, you should read the cards first or read the supplemental text alongside the cards.
At the end of these materials, you will also find a list of additional resources, many of them available on the Internet. The remainder of this introduction offers a context for the tool, by defining domestic violence and highlighting critical aspects of the legal and ethical framework governing any case in which domestic violence is known to be, or may be, an issue.
Domestic violence is complex.6 For purposes of this tool, we are defining it as a pattern of assaultive and coercive behaviors that operate at a variety of levels—physical, psychological, emotional, financial, and/or sexual—that perpetrators use against their intimate partners.7 The pattern of behaviors is neither impulsive nor “out of control,” but is purposeful and instrumental in order to gain compliance from or control over the victim.8 The presence of domestic violence, as well as any violent or abusive behavior that does not fit this description, will always be relevant to the question of what custody or visitation arrangement will serve the best interests of any children shared by the adult parties.9
In some cases, there will be a public record of violence or abuse (police reports; 911 calls; criminal, civil, or protection order case information) and private records (from medical, mental health, substance abuse, shelter, and other service providers); in many others there will be explicit allegations, including allegations of child sexual abuse, 10 and often counter-allegations; in still others there will be indications of disturbance in the family that may or may not, upon further investigation, be related to violence or abuse. There also exist many other collateral issues that could obscure the fact that domestic violence is present in the case. We have called these the “red flag” issues that should prompt further inquiry into the presence or absence of domestic violence. See Card I, Side 2, and accompanying supplemental material.
Domestic violence may not be easily detectible in relationships where the violence is hidden, or where most of the abuse is not physical in nature. Abusive partners can often appear charming, “in charge,” and sincere in their commitment to their families even when their behavior, if we knew it, would tell another story; partners who have suffered abuse may appear to be unreliable witnesses, often seeming to be unappealing, disorganized or emotionally unstable. The parties are likely to hold radically different perceptions of their relationship and of one another; and abusers are often motivated to deny or minimize their abusive behavior. 11 It is particularly important in these cases to test what the parties say against other available evidence, including patterns of assaultive and coercive behaviors in past relationships, in relationships with other family members, or in relationships outside the family. Even if none of the collateral contacts has ever witnessed the abuse or violence, the absence of witnesses to the violence or its aftermath does not conclusively prove that it did not take place. Furthermore, an absence of convictions for domestic violence or violations of restraining/protection orders does not mean that a parent is not abusive.12
In cases involving known or suspected domestic violence, as in most contested custody cases,13 the court’s fundamental task is to determine specifically how and to what extent each child has been affected by what has gone on inside the family; the quality of the child’s relationship with each parent (both historically and at the present time); each parent’s capacity to meet the child’s needs; and how best to assure the child’s ongoing physical, psychological and emotional well-being.
Even when they are not themselves physically or sexually abused,14 when there is violence at home children are aware of and affected by it, although often parents would prefer to think, and may say, that they are not. As a significant and growing body of research attests, exposure to physical violence at home hurts children, although the extent of that injury differs from child to child,15 even within the same home. We are using the term “exposure” to signal that children are affected not only when they are present at the violent incident, but also when they hear it, see it, or see or feel the aftermath—such as a parent injured or in distress, furniture knocked over, things broken, blood on the wall or floor. They are affected, too, when they are forced to live in an atmosphere of threat and fear created by violence. And they are affected by a parent’s use of abusive behaviors that stop short of physical violence, whether those behaviors are directed primarily toward a partner, or characterize the abusive parent’s relationships with partner and children alike.16
This is why judges are now almost universally under a statutory obligation to consider domestic violence as a factor when determining the best interests of children. It is why many judges are under a statutory obligation to presume that a perpetrator of domestic violence is not someone who should be given either joint or sole physical or legal custody of a child or be given unrestricted visitation with the child.17 The definitions of “domestic violence” underlying these specific statutory obligations may be narrower, and more focused on physical violence, than the broader definition we have proposed. But because domestic violence in the broader sense hurts children, it is incumbent on judges in custody or visitation decisions based on the best interests of a child, regardless of particular statutory obligations, to have an accurate picture of the violence or abuse perpetrated by one parent against the other or against a child, and to consider its implications for the child after the parents separate. It is also important to understand that the impact of domestic violence on children may be mitigated by certain protective factors, such as a supportive relationship with the non-abusive parent.18
When you make a determination or approve a parental agreement about custody and visitation, you are trying to create an environment in which children are more likely to flourish, both physically and emotionally. The emotional and physical safety of the children and an abused parent must be a paramount consideration. Children do not flourish if they are not, or do not perceive themselves to be, safe or if they perceive a parent to be at risk. Abused parents must be assured of their own safety, to the greatest extent possible, so that they in turn can provide a safe and secure environment for their children.
Cases involving domestic violence can create acute risks for an abused parent and his or her children; and we cannot determine with any certainty, especially at the outset, exactly which case, or which circumstances, contain or create those risks. Contrary to earlier thinking, in many cases, separation increases, rather than reduces, the risks of harm to an abused parent or to the children.20 Physical, sexual, or emotional abuse or threats of abuse of the children post-separation may be a powerful tool in the abuser’s continuing control over the other parent. Lethal violence occurs more often during and after separation than when the couple is still together, 21 and children often become the targets of or witnesses to this violence.
It may be helpful to think about three contexts in which concerns about safety can be addressed:
As Card I suggests, this tool offers you a checklist of information that will be important to your decision making in any case in which domestic violence is known, alleged, or suspected. If you determine that an evaluation is necessary and if neither the parties nor the court has the resources to provide for one, or if a qualified evaluator for a domestic violence case is not available, it may still be possible for you to request that information from the parties’ attorneys, from the parties themselves if they are unrepresented, and sometimes directly from the source. Child abuse/protection reports, criminal records, and records of other relevant court activity may fall into the latter category.
The tool may also help you determine which avenues of inquiry are the most crucial, and how to maximize the productivity of an inquiry, so that if you have resources for a limited evaluation, you can allocate those resources effectively. Even this limited evaluation, assuming it is informed by the appropriate domestic violence expertise, can add critical information, supplementing that which is available from the parents and enabling you to make a more appropriate decision with limited resources.
If you order a limited inquiry, it will be important to ensure that the evaluator’s conclusions or recommendations do not presume more knowledge than the limited inquiry has in fact produced. For example, children might be “well behaved” in the presence of the abusive parent and “act out” in the presence of the non-abusive parent for a number of reasons not readily apparent to or understood by the evaluator. The opposite could also be true if the children feel safe with a third party present. Therefore, it is critical that evaluators understand the context within which their inquiry takes place and for you to frame the inquiry carefully and to use your authority to make relevant collateral resources available to the evaluator. This may be especially crucial in cases where the parties are unrepresented and have a limited capacity to address effectively any negative conclusions drawn by the evaluator. Exercising critical judgment in your reading of an evaluator’s report is a topic addressed extensively on Card III and the accompanying supplemental material.
If a case seems dangerous from the outset, and if the situation has not already been stabilized, you may need to take immediate action.
In framing temporary orders, you may want to draw on an interim safety assessment performed by a qualified expert—in other words, an interim evaluation with a limited and specific focus on safety. The expert asked to conduct this type of evaluation must be someone with specific expertise and experience in domestic violence and risk assessment.22
Research into domestic violence homicides underscores the fact that our ability to measure risk is still quite imperfect. This in itself suggests that caution is advisable. However, the research does provide some valuable guidance, and suggests the following areas of inquiry as most important for an emergency/interim safety assessment:
There will be cases in which the evidence is clear, and no further evaluation is necessary to determine that a child’s best interests will be served by granting custody to the non-abusive parent. That determination may be driven by a statutory presumption against granting custody or visitation to the abusive parent under such circumstances, or by the court’s own judgment after a broader examination of any violence or abusive behavior.
There will be many cases in which a parent who has perpetrated acts of violence or abuse against the child or other parent nonetheless seeks visitation. The potential for harm, and the need for extreme caution in these circumstances, suggests that if the court is inclined to consider such a request, it may be necessary to determine (a) the motivation for the request; (b) the impact ongoing contact will have on the children or on their relationship with the abused parent; and (c) whether visitation should occur and, if so, how it might be structured to assure the safety of the children and abused parent, sometimes limiting access to strictly supervised visitation.
There will be still other cases involving a limited record of domestic violence in which one of the parties will contest the legitimacy of that record or its relevance to custody and visitation determinations. And there will be cases involving allegations, and perhaps counter-allegations, of domestic violence in which there are no public records to serve as substantiation.24 These cases may benefit from a careful investigation, or evaluation under limited circumstances, conducted within specific parameters established by you. In order to understand fully the impact of a party’s assaultive and coercive behavior on the other party or the children, it may be important that an investigation or evaluation carefully examine the existence of such behavior in the allegedly abusive party’s prior or current relationships.25
Concerns are frequently raised that neither the laws governing the issuance of civil restraining/protection orders, nor the laws governing criminal domestic assault cases, sufficiently distinguish between the primary perpetrator of violence in an abusive relationship, and a partner who may be using violence defensively.
In the civil restraining/protection order and criminal contexts, the focus is on specific acts or threats of violence, stalking, or sexual assault. The family court system has both the luxury and the obligation to look more broadly at the dynamics within the family, and to ask whether one partner is abusing the other as a means of coercive control and what the implications of that abuse are for each member of the family. In cases with this profile, a careful examination may reveal that although both parents have a record of violence, only one of the parents poses any ongoing risk to the children or the other parent, or that the parent with a record of violence is actually the victimized partner, not the abuser.
Perhaps the most difficult and important case is the “red flag” case (see Card I, Side 2). This is the case in which no record or allegation of domestic violence surfaces when the parties first come to court, and yet the children may have been exposed to domestic violence and/or abused themselves, and may be at risk in the future unless further inquiry is made to inform your best-interests analysis properly.
One party may request permission to relocate with the children, and the other may resist that relocation, for a number of reasons, more or less persuasive. In at least some cases, the request to move is motivated by self-protection or a desire to protect the children. If there is a hint that the case may involve domestic violence, or the case is one in which a clear motivation for the relocation appears to be missing, it is essential to explore the possibility that safety concerns may be an underlying reason for the request.30
If you decide to order a custody evaluation, everyone affected by that order—the parties to the case, their children, the expert who is to conduct the inquiry, and you as the ultimate recipient of the expert’s report—is best served when you articulate clearly what you need to know, when there is a match between the scope of the inquiry and the qualifications of the person assigned to conduct it, and when the process to be followed is well defined and managed by you.
For purposes of this publication, we sweep under the general rubric of “custody evaluation” many different kinds of information gathering. In some cases, you may need only information gathering and a report on what was found. Any of a variety of lay witnesses can perform that function, and we refer to that process in this document as investigation. In other cases, you may need the witness not only to collect and provide information, but also to offer expert opinion testimony about it. We refer to that process as evaluation.
We ask custody evaluators to investigate, process the information they collect, interpret it and draw conclusions from it, which requires that they be qualified as experts if their conclusions and opinions are to be admissible. And we often ask evaluators for recommendations, while appreciating that making custody and visitation determinations is a judicial function, and not one that can be delegated. The guidelines on the cards accompanying these materials offer assistance in negotiating this treacherous terrain.
All custody evaluators investigate. The core function of investigators is to gather and interpret information and report their findings to the court. Professionals with varying backgrounds—child protection workers, law enforcement officers, probation officers, domestic violence advocates—may make good investigators. However, different skill sets will be useful in different investigatory contexts. A lawyer’s familiarity with the legal process and with fact-finding may ease his or her access to police, court or child abuse/protection records, and the task of compiling and reporting on the information contained in them. Both lawyers and mental health professionals are likely to be competent in interviewing adults and older children, and synthesizing and reporting what is said. Obtaining information from younger children, and understanding the limits of its reliability, is a task that a mental health clinician with expertise in child development and up-to-date training on appropriate interviewing techniques will be better qualified to perform than someone without that expertise—even though the task is investigatory, it requires specialized skills.
The line between “investigation” and “evaluation” (in its technical sense) is clearest when the evaluative task requires specific mental health expertise. Suppose a child, or a parent talking about a child, reports that the child is suffering from nightmares, has had trouble concentrating on school work (reflected in poor grades), complains of frequent stomach pain, and has been in trouble for aggressive behavior on the playground. Any competent investigator could collect and report that information, but only a mental health professional would be qualified to conclude from that information that the child is, or might be, suffering from post-traumatic stress disorder. A diagnosis of a party’s or a child’s mental health status, in other words, requires particular expertise.
By the same token, it would be appropriate for either an investigator or an evaluator to report that a party or a child was slumped in the chair, did not make eye contact, jumped when the door closed, spoke so softly as to be barely audible, or was argumentative during the interview. Those are “lay” opinions within the competence of any responsible professional. It would, however, be inappropriate for someone without mental health expertise to say that a party appeared clinically depressed, or to be suffering from borderline personality disorder. Those opinions are conclusions that must be reserved for experts. What investigative and evaluative reports have in common, however, is that they should both be factually based and should include a showing of sufficient time spent with all parties as well as a thorough research of supplemental information from public and private records or third-party interviews. The facts provide you, as the judge, with a basis for weighing the merit of each parent’s contentions and, in the case of a qualified expert, determining whether that expert’s opinion is sufficiently grounded factually.
Some custody evaluators may use evaluations as a means to facilitate resolution of a case, and may not undertake a thorough fact-finding process. However, as the ultimate fact-finder, you are entitled to and need all relevant information. That information should be unfiltered and straightforward. The evaluator should demonstrate how any violence or other abusive behavior was considered in arriving at conclusions or opinions and in making any proposed recommendations. Minimizing domestic violence undermines the validity of the report.
Many judges and courts feel that even asking a custody evaluator to offer recommendations at the conclusion of his or her report is an inappropriate delegation of judicial authority. Others fear that it will encourage too heavy a reliance on the evaluator, and will discourage judges from their own careful assessment of the child’s best interests. Some require evaluators to offer recommendations, and feel that a report’s utility is significantly reduced if it does not include them. Given the sharp division of opinion on this issue, we offer suggestions for how a judge can review and work with an evaluator’s recommendations, without inappropriately ceding decision-making authority. 31
Family courts use a variety of mechanisms to identify the pool of experts available for appointment as custody evaluators and to select an evaluator in each case. Your practice will, therefore, be dependent on the mechanisms available to you; you will have more or less flexibility depending on how those mechanisms are structured. Within those constraints, as well as the constraints imposed by limited resources, your goal remains finding a person who has the qualifications best suited to the particular inquiry. In some cases, for example, you might need a specific cultural expertise or expertise in a specialty such as substance abuse. Familiarity with a certain custody evaluator should not substitute for a careful assessment of his or her qualifications to evaluate the present case. Even otherwise good custody evaluators who lack the expertise to recognize domestic violence and appropriately factor it into their evaluations can make serious mistakes in how they report on such cases. It is, therefore, important to choose an evaluator who has training and experience in the issues related to domestic violence, including the dangers associated with separation.32
Domestic violence is its own specialty. Qualification as an expert in the mental health field or as a family law attorney does not necessarily include competence in assessing the presence of domestic violence, its impact on those directly and indirectly affected by it, or its implications for the parenting of each party. And even though some jurisdictions are now requiring custody evaluators to take a minimum amount of training in domestic violence, that “basic training” by itself is unlikely to qualify an evaluator as an expert, or even assure basic competence, in such cases.
Ideally, your jurisdiction will already have a way of designating evaluators who have particular competence in domestic violence. Where that is not the case, you might test the evaluator’s level of experience and expertise, despite the difficulties inherent in any such inquiry, by asking:
Short- and long-term safety concerns for children and/or a parent: The evaluator can glean this information from what has happened in the past, and by talking with the parties and, as appropriate, the children about explicit threats that have been made and threatening behaviors. It is also important to know what the parties and children fear, both because they may be in the best position to predict what will happen, and because even if their fears may appear to be exaggerated or minimized under the circumstances, those fears and the actions taken to address them are relevant to the inquiry into short- and long-term safety concerns for the children and/or a parent.
The most crucial point here is that reports based solely on interviewing and/or observing the parties and their children will rarely, if ever, produce an adequate evaluation in a case known or suspected to involve domestic violence.
Since abusive partners may deny and minimize their use of violence and other controlling behaviors, even to themselves, they may present as sincere and caring partners and parents.34 Their expressed concerns about the parenting capacity of their abused partners may be consistent with a longstanding habit of relentless criticism.35 Alternatively, the abused partner may indeed present as a less than competent parent; but his or her deficiencies may result from the emotional and physical toll the abuse has taken, and may to that extent be temporary in nature.36 Children may, in self-protection, have identified with their abusive parent rather than the parent who appears unable to offer protection, and may, in the form of rejection or blame of the victim, express their anger at being unprotected.37
In this complex and confusing environment, an evaluation that reaches conclusions based on the “he said/she said” of conflicting accounts without recourse to other corroborating sources may be inherently unreliable.
Helpful collateral sources may include:
Pertinent records may include:
In all cases, the relevant questions are:
The important questions raised by requests for parties to provide the evaluator access to privileged information are dealt with infra, in the context of the obligations of the parties. We also discuss the value of and risks associated with psychological testing for custody and visitation determinations.
In the rare case in which it is a relevant and necessary aspect of an evaluation, you may decide, or the expert may determine, that psychological testing would provide a helpful supplement to the information obtained through interviews and examination of the written record. This is an area to approach with caution.38 If psychological tests are used, the test(s) should be administered and interpreted by a psychologist who has expertise in the use of psychological testing in the context of contested child custody cases with allegations or evidence of domestic violence. Generally, however, psychological testing is not appropriate in domestic violence situations. Such testing may misdiagnose the non-abusive parent’s normal response to the abuse or violence as demonstrating mental illness,39 effectively shifting the focus away from the assaultive and coercive behaviors of the abusive parent.
The relevant questions to ask are the following:
In determining the relevance and reliability of psychological testing, consider the following:
In cases of known or suspected domestic violence, the information-gathering procedures identified on Card IIA, Side 1, can protect the abused parent and children from additional harm and increase the integrity of the information obtained. Adults or children who have experienced or been exposed to violence are unlikely to talk openly about it if they are fearful that the perpetrator will have opportunities for retaliation,47 or if they are too ashamed to disclose the violence or abuse.
With care, the evaluator will be able to shield the parties from any contact or unsafe communication with one another during the evaluation process. In many cases, the evaluator will also be able to seek corroboration of negative information disclosed by one party about the other without disclosing the source of that information. It is important, however, to ensure that the parties understand the lack of confidentiality in the evaluation process.
If it becomes clear that information must be disclosed that may put one of the parties at risk, the evaluator should alert that party to the disclosure in advance, so that he or she may take whatever safety precautions are warranted and available. Evaluators may need to provide the abused party with information on safety planning, or assist in developing a safety plan—which may include referring the abused party to a domestic violence program or shelter. 48
Special considerations apply to interviews of children and the use of information obtained from them. First, interview strategies should be non-suggestive and appropriate to the age and developmental stage of the child. Second, the evaluator must build into his or her report the understanding that, while children may provide accurate information, their answers may also involve misinterpretations (or developmentally appropriate but immature interpretations) of events, statements or dynamics, or be influenced by input from one or both parents. From a safety perspective, it is also critical that the evaluator not attribute direct quotes to children, in order to reduce the risk that a parent will use the children’s words against them or against the other parent.
An evaluator who does not respect the safety-driven procedures listed on the cards accompanying these materials is not qualified to conduct an evaluation in a domestic violence case. An evaluation that has been conducted without following those procedures will not yield reliable information or opinions and may be dangerous.
By stressing the need for the parties to assist the evaluator in accessing relevant information, we do not mean to discount the sensitivity of the decision whether or not to waive a privilege attaching to information that might be obtained from a collateral source, or might be gleaned from a written record. It is the responsibility of the parties’ attorneys, if they are represented, and of the evaluator, particularly if they are not represented, to ensure that the parties fully understand the implications of both choosing and declining to waive a privilege, and are able to make an informed decision. It may also be important to determine whether a parent can waive the privilege attaching to a child’s relationship with a therapist; in some jurisdictions, only the child’s own representative or the therapist can take that step.49 Verbal or written information given to the parties should be in their language, or the parties’ attorneys or the evaluator should ensure the availability of a translator or a determination of literacy. 50
Any party who fears that disclosure of information will place him or her at risk of retaliation or who believes that vital privacy interests may be compromised by the investigation should be able to inform the court of his or her concerns before communicating the information.
In regard to the obligations identified on Card IIA, side 2 (fourth bullet), the question of when, if ever, it would be appropriate for a mental health professional to enter a therapeutic, counseling, or other professional relationship with a party or a child, subsequent to providing a custody evaluation in a case involving those individuals, is a vexed one. Because no custody case is truly “closed,” at least until the children reach the age of majority, and because the evaluator may be asked to return to court to assist in subsequent proceedings, the safest course of action is for the evaluator to avoid any subsequent professional contact, along with the conflict of interest it inevitably creates. If, in a small community, that guideline is too restrictive, then it may be appropriate to adopt a less restrictive but clear “waiting period” to discourage the creation of conflict at least during the period when re-litigation is most likely.
We also recommend that, at the time of appointment of the evaluator, the court take the initiative when possible in ordering any records available to the court, such as criminal records, court activity records and child abuse/child protection reports. All these steps will facilitate the evaluation process and prevent the delays that follow when the evaluator and/or the parties are forced to return to court to clarify the terms of the appointment.
Consistent with the emphasis on safety throughout these materials, we suggest that the judge, once the evaluator’s report is admitted into evidence, make an immediate determination whether the report identifies risks that should be promptly addressed, or whether disclosure of the report to the parties may create risks that should be promptly guarded against. The responses suggested on Card III are meant to be illustrative only; there may be additional steps available to you depending on the rules governing your court.
Unless admissibility is stipulated by counsel for each party, the Court must subject both the evaluation report and the expert testimony derived from the evaluation to critical scrutiny, assessing carefully the validity and reliability of each before determining whether they are admissible as evidence.51
In contested custody cases, children may indeed express fear of, be concerned about, have distaste for, or be angry at one of their parents. Unfortunately, an all too common practice in such cases is for evaluators to diagnose children who exhibit a very strong bond and alignment with one parent and, simultaneously, a strong rejection of the other parent, as suffering from “parental alienation syndrome” or “PAS”.52 Under relevant evidentiary standards, the court should not accept this testimony.
The theory positing the existence of “PAS” has been discredited by the scientific community. 53 In Kumho Tire v. Carmichael, 526 U.S. 137 (1999), the Supreme Court ruled that even expert testimony based in the “soft sciences” must meet the standard set in the Daubert54 case. Daubert, in which the Court re-examined the standard it had earlier articulated in the Frye55 case, requires application of a multi-factor test, including peer review, publication, testability, rate of error, and general acceptance. “Parental Alienation Syndrome” does not pass this test. Any testimony that a party to a custody case suffers from the syndrome or “parental alienation” should therefore be ruled inadmissible and/or stricken from the evaluation report under both the standard established in Daubert and the earlier Frye standard.56
The discredited “diagnosis” of “PAS” (or allegation of “parental alienation”), quite apart from its scientific invalidity, inappropriately asks the court to assume that the children’s behaviors and attitudes toward the parent who claims to be “alienated” have no grounding in reality. It also diverts attention away from the behaviors of the abusive parent, who may have directly influenced the children’s responses by acting in violent, disrespectful, intimidating, humiliating and/or discrediting ways toward the children themselves, or the children’s other parent. The task for the court is to distinguish between situations in which children are critical of one parent because they have been inappropriately manipulated by the other (taking care not to rely solely on subtle indications), and situations in which children have their own legitimate grounds for criticism or fear of a parent, which will likely be the case when that parent has perpetrated domestic violence. Those grounds do not become less legitimate because the abused parent shares them, and seeks to advocate for the children by voicing their concerns.
If the history of violence is ignored as the context for the abused parent’s behavior in a custody evaluation, she or he may appear antagonistic, unhelpful, or mentally unstable.61 Evaluators may then wrongly determine that the parent is not fostering a positive relationship with the abusive parent and inappropriately suggest giving the abusive parent custody or unsupervised visitation in spite of the history of violence; this is especially true if the evaluator minimizes the impact on children of violence against a parent or pathologizes the abused parent’s responses to the violence.62
Custody evaluators, therefore, should be advised to listen carefully to children’s concerns about each of their parents, and follow up with a careful investigation as to whether those concerns are grounded in fact, what role each parent has played in shaping the children’s perceptions of the other parent, and each parent’s apparent motivation. This careful factbased inquiry, unlike applying the “PAS” label, is likely to yield testimony that is more accurate and relevant.
The checklist provided on Card III offers a recap of much of the material included on Cards I and II, offering you a final opportunity to assess how well the evaluation has been performed, and the extent to which you can feel comfortable relying on its conclusions.63
One common flaw in reports prepared by custody evaluators that deserves special mention is “confirmatory bias.” It appears when the evaluator develops a hypothesis— forms an opinion about some issue in the case—early in his or her process, finds data to support it, confirms the hypothesis, and then stops testing it against new or different data that might undermine the hypothesis or effect a change of mind.
A final test of the evaluator’s expertise is whether his or her recommendations take into account the need to protect the physical and emotional safety of the abused parent and children involved in the case, and whether the recommendations offered make full use of the range of alternatives available in the case, such as:
Finally, there will be occasional cases where the only way to serve the children’s best interests will be to deny the violent or abusive parent any future contact with the children because it seems that less restrictive alternatives will not secure their safety or that of the other parent.
AM. PSYCHOL. ASSOC’N (Sandra A. Graham-Bermann & Jeffrey L. Edleson eds., 2001). DOMESTIC VIOLENCE IN THE LIVES OF CHILDREN: THE FUTURE OF RESEARCH, INTERVENTION, AND SOCIAL POLICY. Washington, DC: Am. Psychol. Assoc’n.
MARY M. LOVIK (3rd ed. 2004). DOMESTIC VIOLENCE BENCHBOOK: A GUIDE TO CIVIL AND CRIMINAL PROCEEDINGS. Lansing, MI: Mich. Jud. Inst.
JAMES PTACEK (1999). BATTERED WOMEN IN THE COURTROOM: THE POWER OF JUDICIAL RESPONSES. Boston: Northeastern U. Press.
MARIA D. RAMOS & MICHAEL W. RUNNER (1999). CULTURAL CONSIDERATIONS IN DOMESTIC VIOLENCE CASES: A NATIONAL JUDGES BENCH BOOK. San Francisco: Fam. Violence Prevention Fund.
MICHAEL RUNNER & SUJATA WARRIOR (2001). CULTURAL CONSIDERATIONS IN DOMESTIC VIOLENCE CASES: A NATIONAL JUDICIAL EDUCATION CURRICULUM. San Francisco: Fam. Violence Prevention Fund.
NEIL WEBSDALE (1999). UNDERSTANDING DOMESTIC HOMICIDE. Boston: Northeastern U. Press.
Am. Judges Assoc’n, Domestic Violence & The Courtroom Understanding The Problem… Knowing The Victim, available at http://aja.ncsc.dni.us/domviol/publications_domviobooklet.htm (last visited Dec. 6, 2005).
Assoc’n of Fam. & Conciliation Cts., Model Standards of Practice for Child Custody Evaluations, available at http://www.afccnet.org/pdfs/Child_Model_Standards.pdf (last visited Dec. 6, 2005).
Janet M. Bowermaster, Legal Presumptions and the Role of Mental Health Professionals in Child Custody Proceedings, 40 DUQ. L. REV. 265 (2002).
Janet M. Bowermaster, “Relocation Restrictions: An Opportunity for Custody Abuse”, 4 Synergy 4 (Winter 1999/2000).
Comm’n on Domestic Violence, Am. Bar Assoc’n, Tool for Attorneys to Screen for Domestic Violence, available at http://www.abanet.org/domviol/screening%20tool%20final%20version%20sept.%202005.pdf (last visited Dec. 6, 2005).
Clare Dalton, When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System, 37 FAM. & CONCILIATION CTS. REV. 273 (July 28 1999) [Journal is now called Family Court Review].
Stephen E. Doyne et al., Custody Disputes Involving Domestic Violence: Making Children’s Needs a Priority, 50 JUV. & FAM. CT. J. 1 (1999).
Jeffrey L. Edleson, Lyungai F. Mbilinyi & Sudha Shetty, Parenting in the Context of Domestic Violence (March 2003), at http://www.courtinfo.ca.gov/programs/cfcc/pdffiles/fullReport.pdf (last visited Dec. 6, 2005).
Andrea C. Farney & Roberta L. Valente, Creating Justice through Balance: Integrating Domestic Violence Law into Family Court Practice, 54 JUV. & FAM. CT. J. 35 (2003).
Deborah M. Goelman, Shelter from the Storm: Using Jurisdictional Statutes to Protect Victims of Domestic Violence after the Violence Against Women Act of 2000, 13 COLUM. J. GENDER & L. 101 (2004).
Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining Solutions, 11 AM. U.J. GENDER SOC. POL’Y & L. 657 (2003).
Lynn Hecht Schafran, Evaluating the Evaluators: Problems with “Outside Neutrals”, 42 JUDGES’ J. 10 (Winter 2003).
Maureen Sheeran & Scott Hampton, Supervised Visitation in Cases of Domestic Violence, 50 JUV. & FAM. CT. J. 13 (1999).
http://www.abanet.org, seeks to provide attorneys and judges with the knowledge and tools needed to assist them in their legal profession. The ABA has several programs targeted to specialized areas of interest, which are highlighted below.
http://aja.ncsc.dni.us/domviol/page1.html, seeks to improve “the effective and impartial administration of justice, to enhance the independence and status of the judiciary, to provide for continuing education of its members, and to promote the interchange of ideas of a judicial nature among judges, court organizations and the public.” The AJA offers publications to address domestic violence issues, including a Special Issue on Domestic Violence, 39 CT. REV. 4-51 (Fall 2002) and Domestic Violence & The Courtroom: Understanding The Problem—Knowing The Victim, both of which can be downloaded from its website.
http://www.afccnet.org, is “an international and interdisciplinary association of family, court, and community professionals dedicated to constructive resolution of family disputes.” Among its stated purposes, the AFCC seeks to provide an interdisciplinary forum for the exchange of ideas and the development of procedures to assist families in conflict and to develop and improve parent education, mediation, custody evaluation, and other processes to aid families in resolving their disputes.
http://bwjp.org, is a collaborative effort of three organizations whose mission is “to promote systemic change within community organizations and governmental agencies engaged in the civil and criminal justice response to domestic violence that creates true institutional accountability to the goal of ensuring safety for battered women and their families. To this end, BWJP undertakes projects on the local, state, national, and international levels.” BWJP, Civil Office, works with professionals on issues such as divorce and support, child custody, separation violence, mediation, and protection orders.
http://www.courtinfo.ca.gov/programs/cfcc/programs/description/famviol.htm, is a project of the Judicial Council of California, Administrative Office of the Courts, that focuses on how the courts and court-related professionals address issues of family violence and offers training for child custody evaluators on domestic violence in accordance with the California Rules of Court.
http://www.endabuse.org, “works to prevent violence within the home, and in the community, to help those whose lives are devastated by violence because everyone has the right to live free of violence.” FVPF’s Judicial Education Project, in partnership with the National Council of Juvenile and Family Court Judges, conducts education seminars for judges across the country in order to enhance their skills in handling criminal and civil domestic violence cases.
http://www.lrcvaw.org, seeks “to obtain legal representation for domestic violence survivors in interstate custody cases and to provide technical assistance to domestic violence victim advocates and attorneys in such cases.” The website provides helpful information and links for survivors, advocates, and attorneys.
http://www.mincava.umn.edu, operates an electronic clearinghouse that provides research, education, and access to more than 3,000 violence-related resources on such issues as child abuse, domestic violence, dating violence, stalking, sexual violence, and elder abuse.
http://www.naicja.org, is “a national voluntary association of tribal court judges. Its membership is primarily judges, justices and peacemakers serving in tribal justice systems. NAICJA is a non-profit corporation established in 1969. The Association is primarily devoted to the support of American Indian and Alaska Native justice systems through education, information sharing and advocacy. The mission of the Association, as a national representative membership organization, is to strengthen and enhance tribal justice systems.”
http://naccchildlaw.org, mission is “to improve the lives of children and families through legal advocacy. The NACC provides training and technical assistance to attorneys and other professionals, serves as a public information and professional referral center, and engages in public policy and legislative advocacy.”
http://www.nawj.org, is dedicated “to ensuring equal justice and access to the courts for all including women, youth, the elderly, minorities, the underprivileged, and people with disabilities; providing judicial education on cutting-edge issues of importance; developing judicial leaders; increasing the number of women on the bench in order for the judiciary to more accurately reflect the role of women in a democratic society; and improving the administration of justice to provide gender-fair decisions for both male and female litigants.”
http://www.ncsconline.org, provides “up-to-date information and hands-on assistance that helps [court leaders] better serve the public. NCSC offers solutions that enhance court operations with the latest technology; collects and interprets the latest data on court operations nationwide; and provides information on proven ‘best practices’ for improving court operations in many areas, such as civil case management.”
http://www.ncjfcj.org, is “dedicated to serving the nation’s children and families by improving the courts of juvenile and family jurisdictions.” NCJFCJ has dedicated programs addressing family violence, child abuse and neglect, victims of juvenile offenders, alcohol and drug abuse, termination of parental rights, child support enforcement, adoption and foster care, and juvenile delinquency.
http://www.ojp.usdoj.gov/vawo, provides on-line resources with “up-to-date information on interventions to stop violence against women for criminal justice practitioners, advocates, and social service professionals with the latest in research and domestic violence, stalking, batterer intervention programs, child custody [and] 31 protection, sexual assault, and welfare reform.”
REMEMBER: Not every case will require or need an evaluation. However, you can still use this tool to guide you in requiring the production of evidence by attorneys, providing unrepresented litigants with a checklist of needed information, and assessing your own ability to make safe and responsible decisions in light of both the information you have and the information you do not.
Is this a case where I need assistance in determining:
(See also supplemental material, INTRODUCTION, p. 7-11.)
Many litigants are unable to afford evaluations, and many courts have limited evaluation resources. If resource constraints, or the lack of a qualified evaluator, preclude an evaluation in a particular case, this tool may still assist you:
NO, if a restraining/protection order is in place and provides needed relief, the party against whom it was issued is in compliance, and the situation is stable.
YES, if an existing restraining/protection order has been violated or is not adequate (e.g., fails to provide needed relief), or if there is no restraining/protection order in place, and you have reason to be concerned about the safety of one or both of the parties and/or their children. You may want an interim safety assessment performed by a qualified expert before issuing temporary orders to stabilize the situation pending a final resolution of the contested issues.✱
FACTORS that might prompt an emergency/interim safety assessment include:
An emergency/interim safety assessment should:
The answer may be YES when:
The answer may also be YES when:
RED FLAGS include:
(See also Card 1, Side 1, FACTORS, and Card II, Side 2, INFORMATION.)
And the answer may also be YES when:
✱ Asterisks denote points at which it may be particularly helpful to refer to the accompanying supplementary materials.
REMEMBER: Not every case will require an evaluation. However, you can still use this tool to guide you in requiring the production of evidence by attorneys, providing unrepresented litigants with a checklist of needed information, and assessing your own ability to make safe and responsible decisions in light of both the information you have and the information you do not.
Your highest priority in framing your order, and the evaluator’s highest priority in conducting the inquiry, is to make sure that:
You need information to guide your own application of the relevant legal principles and rules. Whom you choose to provide you with the information will be influenced by the type of information you need.
You need an investigation when the questions are factual. For example:
You need an evaluation from a mental health professional to answer the following types of questions if they are relevant to the inquiry:
Recommendations to the Court: ✱
Court practice is sharply divided on the question of asking evaluators or investigators to make recommendations. However, opinion is unanimous that the judges, not evaluators, make the ultimate best-interests determination. If you or your court permits or requires custody evaluators to make recommendations, in order to make sure that you can make your own independent assessment, you must be able to determine:
(See Card III, Side 2, ASSESSING THE RECOMMENDATIONS)
It is important to choose an evaluator who has training and experience in: ✱
You will also need to match the evaluator’s training and skills to the particular inquiry:
Although the particular areas of inquiry may differ from case to case, areas that are usually important in a case in which domestic violence has or may have occurred, and that you will want to direct the expert to inquire into, include the following:
(See also Card I, Side 1, FACTORS, and Card I, Side 2, RED FLAGS.)
✱ Asterisks denote points at which it may be particularly helpful to refer to the accompanying supplementary materials.
Evaluations that are based solely on interviewing and/or observing the parties and their children are significantly less reliable. You will want to ensure that evaluators supplement basic information with:
(See Card III, Side I, READ THE REPORT CRITICALLY)
Evaluators must make the information-gathering process safe for all concerned, to avoid putting the parties or their children at risk or compromising the reliability of the information obtained. ✱ Evaluators should:
We propose that your order for a custody evaluation specifically include:
To facilitate the evaluation and increase the utility of the final product, articulate clearly the obligations of the parties, their attorneys, and the evaluator:
✱ Asterisks denote points at which it may be particularly helpful to refer to the accompanying supplementary materials.
Apart from the task of framing final orders, immediate safety concerns may require you:
It is important to remember that custody evaluation reports are a form of evidence, either written or oral, which requires an admissibility determination. Check your state’s rules of evidence. See also the Federal Rules of Evidence (FRE): FRE 401 and 402 (relevance), FRE 403 (probative value), and FRE 702 (experts). (See supplemental material, PARENT ALIENATION AND THE DAUBERT STANDARD, p. 24.)
(Note: The factors listed in this section could be used to determine the admissibility requirements under your state’s rules of evidence.)
From the report, you should be able to determine whether the evaluator:
To assesss the weight to give to the report, you will need to determine whether the report contains sufficient information for you:
(For more information on reading the report critically, see the supplemental information regarding confirmatory bias, page 25; see also Card IIA, Side 1, SOURCES OF INFORMATION, and corresponding supplemental material, page 19-21.)
If domestic violence is identified as an issue, you will need to determine whether a qualified evaluator: ✱
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