Child Custody Evaluations and Facilitations

What Can a Forensic Psychologist Do?

Presented at the Wayne County Family Law Bar Association Nuts and Bolts Seminar, 5/15/08

Jim Alle called me up with some issues he wanted me to address at this seminar.  Specifically, he asked me my opinions on matters before the divorce judgment, such as my opinions on when to evaluate, when to facilitate, and how do I deal with some issues in evaluations, such as addressing the factors in the child custody act.  What does a forensic psychologist do, and what can we do?

As I thought about this, it came to me that there is a whole spectrum of cases that come to my attention in the course of a divorce, which I conceptualize along a continuum from those where there is minimal conflict between the parties, to those where is intense conflict and there are numerous problematic issues:

This slide shows a continuum of levels of conflict between parties which can arise in a family law case, adapted from a terrific book, Caught in the Middle:

Slide02

At the Minimal Conflict end are cases in which parties can usually agree upon a parenting arrangement and might ask for a mediator to help them answer some specific questions like:

“What is a developmentally appropriate solution to their child or children’s needs?”

These parents can cooperate and communicate, resolve conflicts and can separate their own needs and relationships difficulties from their children’s needs.

At the far end, in two categories of Intense or severe Conflict, there are issues of either physical or emotional danger to the child, issues of alienation, of potential exposure to violence, substance abuse, or of the parent or parents’ psychological pathology. At this end of the spectrum, a psychologist might be asked to assess the parents with respect to allegations of potential violence or abuse, mental illness, or attempts to alienate the children from the other parent. The psychologist would typically also be asked to recommend a solution, whether in terms of custody, parenting time or other interventions to address these issues.

Lets look at this continuum more detail:

Minimum Conflict

Minimal conflict is defined by the following:

  • Cooperative parenting
  • Conflicts are resolved between adults
  • The parties separate their own needs from the child’s or children’s needs
  • The parties validate, and support the other parent to child

Slide03

At this end of the spectrum, parents cooperate, communicate, resolve conflicts without involving the children.   Such people don’t often need a psychological evaluation.

There may be a dispute about custody, i.e. what to call their arrangement, who wins, what is the best arrangement given the ages of their children.

These are people who often can manage a joint legal/joint physical arrangement, or at least an arrangement with a good deal of shared parenting. Sometimes you get a man who insists that Joint Custody is his right, or a woman who feels that anything other than sole physical custody means that she is admitting that she is an inadequate parent.  Sometimes people are just hung up on words.

These people usually benefit from mediation, and this is what I prefer to do with them. Mediation with these folks is usually successful.

A psychological evaluation for them, with testing and consideration of the factors, is generally a waste of time.

Mild Conflict

Parents in this category:

  • Occasionally berate the other parent in front of the child(ren) or to the child(ren)
  • Occasionally verbally quarrel in front of child(ren)
  • Sometimes questions the child(ren)  about the personal life of the other parent
  • Occasionally attempt to form coalitions with the child(ren) vs. other parent

Slide04

Mild conflict folks are often in the throes of unresolved marital disputes. In most cases their anger and misbehavior is a temporary phenomenon which resolves itself as they work through their hurt, grief and anger over their divorce and other marital disputes. It may take a year or two for them to reach an accommodation to the changes in their lives, but this most often happens

They have some problem, in the crisis context, in modulating what they say about the other parent, or what they do in front of the kids, but their behavior doesn’t get out of control.

What defines them is their ability to make use of advice that putting the kids in the middle or exposing the kids to their conflicts is bad for the kids.

These folks may disagree about what kind of parenting arrangement is best for their kids, and may only be able to communicate with one another with a third party present, but in the presence of this third party, they do much better.

Then they get down to important issues like what is a good arrangement for their children, how to prevent or resolve future problems, for example with an agreement to mediate in the future or to use a parenting coordinator when things get sticky.

Again, such people typically don’t need a psychological evaluation.  It may be requested, as each party may feel that they should be the primary caregiver for the child, or one parent wants joint custody while the other wants sole custody.  In many such cases, either closed mediation or facilitation should be tried first.

By facilitation I mean those cases where I am asked to facilitate an agreement on as many issues as possible and make a recommendation to the court on the remaining issues. Sometimes the order calls me a parenting facilitator, sometimes a parenting coordinator.

I have had many cases in which I was asked to do this, and I am currently in the middle of several.

The core principle is to give the parties as much decision-making power as possible, try to address the unresolved issues. In such cases, the attorneys are usually interested in settling the case, and the court makes the ultimate decisions if either party disagrees with my recommendation.

Moderate Conflict

This category is defined by the following problematic parental behavior:

  • Verbal abuse, no history of violence
  • Loud quarrels in front of child(ren)
  • Denigration of other parent to child(ren)

Slide05

In cases of moderate conflict there is a real issue of whether to facilitate or to evaluate, which needs to be assessed on a case-by-case basis.  The children are being placed in the middle of their parents’ conflicts, and/or there are significant questions about one or the other parent — or both– in terms of their parenting capacities or liabilities, their relationship with their children, and whether or not a psychological problem is a long-term or temporary one.

These parents don’t let up when told that their arguing in front of the children, or bad-mouthing the other parent to the children, is bad for the kids. This may continue even though I convey a message from the kids to their parents that their fighting is upsetting the child(ren). Such parents need to blame one another, and they don’t take responsibility for problems; they blame these problems on one another.

The children may take sides in their parents’ conflicts, especially if they are preteens or teens. Or, they may have problems with a parent based on that parent’s real disturbing behavior.

Sometimes in these cases I get a very specific referral, e.g. a referral simply to evaluate the psychological functioning of one or both parents.

In other cases, the parties are willing to work things out if they have access to a parenting coordinator who will serve in the future as a buffer for communication, or as an advisor to the court in the event of future problems.

In still other instances, these parents are determined to fight and their attorneys need a custody evaluation to get the case settled on the basis of the evaluator’s recommendations. In the majority of such cases, 80 to 90 percent, the parties do settle after getting a recommendation from me.

Intense Conflict

This point in the continuum may be defined by the following problems:

  • Parent (s) in physical danger due to violence
  • Threats- of violence, limiting access, litigation
  • Attempts to alienate child from other parent
  • Emotional endangerment of child via conflict, parental psychopathology

At the intense conflict point in the spectrum, there is little capacity to resolve even the easiest disputes. A party is out for blood and is taking no prisoners. The other party may be just as hostile and inappropriate, or may be a victim of an aggressive, abusive and/or vindictive character.

The children are caught in a very unhealthy environment.   The parent(s) is/are unconcerned about the risk of their own behavior to the children. They can only see the badness of the other parent. Their blame and or paranoia justifies teaching the children that the other parent is bad.

In this category are families with issues of possible substance abuse or other psychological problems, parents who may have physically or emotionally abused their children, and parents who may have emotional problems which threaten their children’s well-being.

Also in this category are cases where children are estranged from a parent. In such cases, the key issue is the basis of their estrangement:

Is there pressure on the children to take sides, have they been provided with information designed to spoil their relationship with the estranged parent, and/or has there been real behavior by the estranged parent which pushed them away?

What I typically do in such cases is not just to advise the court on parenting time and custody, if I am ordered to do so; also, I need to recommend specific solutions to the problems which are found, like: a) how to set up exchanges to minimize contact between the parties;
b) whether or not to use a parenting coordinator or GAL to act as a guardian angel, watching over these children in the future; c) determining treatment needs; d) determining needs for supervision of parenting time; or e) recommending specific interventions to deal with alienated children.

Severe Conflict

This level of conflict is defined by obvious emotional dysfunction or psychopathology, domestic violence or substance abuse:

Slide07

 

At the severe conflict end of the spectrum I am rarely brought in to make a custody recommendation. Such cases are generally more obvious, with clear evidence of child abuse, mental illness or substance abuse.

What is more appropriate, and what I may be called upon to do, is to address specific issues, such as how to protect the children, whether and how to go from supervised to unsupervised parenting time, and to assess the treatment needs or the adequacy of treatment for one of the parties, or the family, and how to monitor progress.

In such instances I am more typically brought in as a parenting coordinator. These cases need long-term help; their problems may evolve over time, whether in a positive or negative direction, or roller-coaster style, with ups and downs. An evaluation is just a snap-shot; these families need an expert/specialist who will be involved over an extended period of time.

Here is a summary of the issues which a psychologist might address, relative to each point on the conflict scale:

Slide08

Specialized Expertise of the Forensic Psychologist

I have done several hundred evaluations over the past twenty years.  I know that there is a legal/forensic issue of whether or not to address the factors of the child custody act.  Jim asked me to talk a bit about this.  I also know that there are judges (rarely) who do not want a psychologist to deal with ultimate issues, such as the factors in the Child Custody Act.  The large majority of judges want me to do so, and attorneys most often want me to do so.  Cases are most often settled, and my report does not go before the judge.  I think the attorneys need this kind of analysis.

The solution to this problem is a specific order which details what issues to address.

So when I do an evaluation, I organize my thoughts by the factors of the Michigan Child Custody Act.  Let me discuss briefly what is in the factors upon which a forensic psychologist can offer helpful opinions (in addition to the factual issues which the court and attorneys are best equipped to evaluate):

Factor a: The love, affection, and other emotional ties existing between the parties and the children.

The psychologist’s expertise includes the ability to observe and analyze:

  1. The relative emotional health of the bonds between the parties and the children.
  2. To whom the children look to meet their physical and emotional needs.

Factor b: The capacity and disposition of the parties to give the child love, affection, and guidance and continuation of the educating and raising of the of the children in their religion or creed, if any.

The psychologist’s expertise includes the ability to observe and analyze:

1. The interaction between parents and children (e.g., responsiveness, warmth, affection, patience, reciprocity, limit-setting).

2.  The parties’ parenting capacities (e.g., knowledge of child development, communication skills, consistency and appropriateness of guidance and discipline, accurate perception of child’s communications, needs).

3. The parties’ parenting liabilities (e.g. the negative impact of parental problems, fearfulness in parent-child relationship, manipulation of child to spite other parent).

4.  The parties’ history of involvement in,motivation for, and skills for involvement in the children’s education, extracurricular activities and religious activities, if applicable.

Factor c: The capacity and disposition of the parties involved to provide the children with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

The psychologist’s expertise includes the ability to observe and analyze:

1.  parents’ involvement or support for children’s psychological care, and the appropriateness and adequacy of that care.

2.  The parents’ understanding and active involvement in the children’s medical care, special needs.

Factor d: The length of time the children have lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

The psychologist’s expertise includes the ability to observe and analyze:

issues of continuity or discontinuity of the home, parenting, family and social environment, and its probable impact on children.

Factor g: The mental and physical health of the parties involved.

The psychologist’s expertise includes the ability to observe and analyze:

  1. Issues of whether and how any physical disorder, psychological disorder or substance abuse problem translates, or has a potential to translate into parenting risk for the child(ren), and the likely impact of these disorders on the child’s health and well-being.
  2. Potentials for abuse, neglect, or other harm to children.

Factor h: The home, school and community record of the children.

The psychologist’s expertise includes the ability to observe and analyze:

  1. Each parent’s history of involvement in the child(ren)’s school (or community or extracurricular activities).
  2. Success/problems/failure in each child’s school (or community or extracurricular activities)– what is needed to address any problems, and each parent’s capacities for ameliorating any problems, or encouraging each child’s success in these endeavors.
  3. Adequacy of supervision;
  4. Parents’ involvement in behavioral/emotional/social problems; and
  5. teach child’s treatment or other remedial needs

Factor i: The reasonable preference of the children, if the court deems the children to be of sufficient age to express preference.

The psychologist’s expertise includes the ability to observe and analyze:

  1. Each child’s level of intelligence, maturity, freedom from bias or influence by adults in expressing preferences;
  2. Whether a child provide his/her own coherent reasoning for preferences, or shows signs of having been manipulated by adults.
  3. The risk of flip-flopping in preferences, or
  4.  Manipulation of adults by an adolescent.

Factor j: The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the children and the other party.

The psychologist’s expertise includes the ability to observe and analyze:

  1. Whether and who may be placing the child in the middle of loyalty conflicts
  2. Disparagement of other parent to child,
  3. Attempts to alienate the child from other parent.
  4. What is needed (would be helpful) to address such problems, if they occur?

Factor k: Domestic violence, regardless of whether the violence was directed against or witnessed by the children.

The psychologist’s expertise includes the ability to observe and analyze:

  1. What is the impact on the child, or on the parent-child relationship, of a history of domestic violence?
  2. What exchange/supervision arrangements are made necessary, if any, by this history?

Factor l: Any other considered by the court to be relevant to a particular dispute regarding termination of a guardianship, removal of a guardian, or visitation.

The psychologist’s expertise includes the ability to observe and analyze, regarding issues of joint custody or proposed 50/50 parenting arrangements: whether the parties display a capacity to resolve disputes, to communicate, and to place the children’s issues ahead of their own.

Ultimate Issues

The ultimate issue in a mediation, facilitation or psychological evaluation is not merely to get a settlement or to make a parenting time or custody recommendation.  It is not to declare a winner in a contest, or to strike a deal which leaves the parties feeling whole.

The ultimate issues, as defined by the Child Custody Act, are to resolve the issues in dispute in such a way that the children’s welfare is protected and their best interests are promoted.  Such issues include:

  1. Delivering the goods to the children (for example):
    1. Providing access for the children to their parents, and respecting the children’s attachments to each parent;
    2. Maximizing the children’s exposure to the skills, energy, and other positive characteristics of each parent;
    3. Minimizing or mitigating the disruptive aspects of the divorce for the children;
    4. Proposing solutions for problems which exist which impact the children (e.g., making sure that children get psychological treatment, medical care or remedial education);
    5. Finding a way to encourage parenting decisions and dispute resolution on the children’s behalf.
  2. While at the same time protecting the children from harm:
    1. Protecting the children from conflict between their parents (on the spectrum of conflict described above);
    2. Protecting the children from other behavior by their parents (or their associates) which is risky or harmful to the children (for example):
      1. Putting the children in the middle of parental conflicts, from exposure to parental anger, causing the children to witness quarrels, or causing the children to witness emotional, verbal or physical abuse
      2. Efforts to pressure the children to take sides in parental conflict
      3. Attempting to alienate the child from the other parent
      4. Inappropriate, frightening, or dangerous behavior by either or both parents.

Depending on the circumstances and specifics of the case, mediation, facilitation or psychological evaluation can contribute to promoting the legal system’s ability to address these ultimate issues.