Child Custody Evaluations and Facilitations: What Can a Forensic Psychologist Do? PART I
The Wayne County (Michigan) Family Law Bar Association asked me to address, for a seminar, my opinions on when, in working with a divorcing family, to evaluate and 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?
PART I: THE PSYCHOLOGIST’S ROLE IN RELATION TO THE LEVEL OF FAMILY CONFLICT
As I thought about this, it came to me that there is a whole spectrum of cases that come to a psychologist's attention in the course of a divorce. I conceptualize these 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 by Garritty and Baris:
At the Minimal Conflict end of the continuum are divorcing families in which the 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, of 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.
So what are some specific issues which the psychologist might help to address at each level of the conflict spectrum?
At this Minimal Conflict end of the spectrum, parents cooperate, communicate, and resolve conflicts without involving their children.
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.
Such people don't need a psychological evaluation, although they may want one. Sometimes people are just hung up on words; e.g., what to call the arrangement.
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 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 gain emotional distance from 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 some cases they have some problem, in the high-stress context of the divorce, in modulating their emotion, in controlling what they say about the other parent, or what they do in front of the kids. Hurt and anger, jealousy and resentment sometimes lead to poor choices. But their behavior doesn’t get out of control.
What defines them is their ability to make use of the knowledge that putting the kids in the middle of their conflicts, or otherwise 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.
With a neutral helping person they get down to important issues like what is a good arrangement for their children, and how to prevent or resolve future problems. An agreement to mediate in the future or to use a parenting coordinator, when things get sticky, is often beneficial.
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, and 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.
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, or whether a psychological problem is a long-term issue or a 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 children. Such parents feel a need to blame one another, and don’t take responsibility for problems. Their main motivation, often, is assigning blame to the other parent.
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 each parent.
In other cases, the parties are willing to work things out if they have access to a parenting coordinator who serves 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, in my experience 80 to 90 percent, the parties do settle after getting a recommendation from an evaluator.
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 parent is 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.
The children are caught in a very unhealthy environment.
Also in this category are parents with issues of possible substance abuse or other serious 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.
Another group of families 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. All of these are intended to reduce the exposure of the children to conflict or other harmful behavior.
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, to assess the treatment needs or the adequacy of treatment for one of the parties, 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.
Summary of Issues for Evaluation/Facilitation
I hope that this presentation opens up an understanding of the variety of roles a forensic psychologist can play in a divorcing family, in addition to the common role of custody evaluator.
If attorneys, families, and courts can understand and accept these possibilities, a more cost-effective and appropriate decision can be made as to how to help a family in the process of divorce.
In PART II I will deal with what kinds of questions a forensic psychologist can help to answer in a child custody evaluation.
(Presented at the Wayne County Family Law Bar Association Nuts and Bolts Seminar, 5/15/08)