- Email: [email protected]
The Functions of Psychiatric Evaluation in Contested Child Custody and Visitation Cases
THE The Functions of Psychiatric Evaluation in Contested Child Custody and Visitation Cases PETER ASH, M.D., AND MELVIN GUYER, PH.D., J.D. The process of the resolution of 200 disputed custody and visitation cases referred for court-ordered evaluation was studied. Although the function of such evaluations is often seen as providing evidence for judicial consideration, in the study sample this was an unusual result, as judges made decisions in only 11% of cases. Highly adversarial parents reached agreement during or at the end of the evaluation in 18% of cases, and the experts’ recommendations functioned as a bargaining chip which promoted resolution in 71% of cases. The authors propose a model in which psychiatric evaluation in these cases functions in the legal system as an alternative method of dispute resolution, gaining much of its effect from the shadow of judicial power which looms in the background. The implications of this model for the conduct of psychiatric custody/visitation evaluations are discussed. Journal of the American Academy of Child Psychiatry, 25,4554-561,1986.
tional law eroded the effectiveness of these simplifying presumptions. By 1978, the tender years doctrine had either been rejected or relegated to the role of tie breaker in most states, and fault-based divorce remained in only three states (Freed and Foster, 1978). These developments invited increased litigation in child custody matters since the outcomes of litigation became more uncertain. The increasing use of joint custodial arrangements further added to the complexity of decision making. Instead of a dichotomous choice between two competing sole custodians, courts and parents also had to consider various forms of joint custody. With the emphasis on “best interests” tests to decide child custody issues, psychological questions became increasingly relevant: what was best for the child became the statutory basis for resolving a child custody contest, and best interests were taken to be a factual question. As judicial uncertainty mounted, mental health professionals, especially since the publication and wide discussion of Beyond the Best Interests of the Child (Goldstein et al., 1973),have increasingly offered their expertise in defining the child’s best interests. The use of expert opinion in custody cases promised to remove much of the expensive and timeconsuming fact-finding from the courtroom and place it into the hands of mental health professionals. Some courts utilize in-house experts, clinicians who regularly gather information and make recommendations to the court. Since experts are allowed to testify as to conclusions as well as matters of fact, the in-court fact-finding process was streamlined the expert con-
For many years, courts and legislatures dealt with the difficulties of managing custody cases arising from divorce actions by the use of simplifying devices. One of these was the “tender years” doctrine, an evidentiary assumption which held that children should be raised by their mothers. Another simplifying mechanism for the efficient management of custody cases derived from traditional “fault-based” divorce in which one party was at fault for breaching the marital contract and the other party was held blameless. Given the usual grounds for fault-based divorce, husbands were typically in breach of contract and so were “at fault.” Once “fault” was established, the custody matter, if contested, was decided upon fault-based considerations rather than the child’s “best interest.” A combination of the tender years presumption and fault-based divorce allowed an almost automatic resolution of custody contests in favor of mothers. This result served several judicial purposes: it minimized litigation, since the expected outcome for potential contestants was clear; it allowed application of a simple rule without the necessity of formal fact-finding and it freed the judge from accepting the individual responsibility for making a difficult decision. Changes in domestic relations law and constituReceived January 29, 1986. Dr. Ash is an Assistant Professor and Dr. Guyer is an Associate Professor with the Family and Law Program, Department of Psychiatry, University of Michigan. Reprints may be requested from Peter Ash, M.D., Children’s Psychiatric Hospital, Box 0706, University of Michigan, Ann Arbor, MI 48109. O002-7138/86/2504-0554 $02.00/0 0 1986 by the American Academy of Child Psychiatry. 554
EVALUATIONS IN CUSTODY CASES
ducted the necessary fact-finding related to the best interests test outside the courtroom and presented the data and conclusions based upon his fact-finding inside the courtroom. From the court’s point of view, the use of expert testimony in these cases serves a purpose essentially the same as the earlier use of presumptions and “fault.” It reduces-for the courtsthe difficulties and expenses of deciding contested custody cases. With increasing use of mental health experts by courts, the role of mental health experts has come in for reexamination. The traditional courtroom expert is retained by one party and serves the interest of the party who foots the bill. This is of special concern in custody cases because the children whose interest is being determined are not parties before the court. A growing number of psychiatrists (see, for example, the American Psychiatric Association (1982), Derdeyn (1975)and Gardner, 1982)argue that psychiatrists are most useful if they serve as impartial experts acting as witnesses for the court rather than as an expert retained by one party. Such a nonparty expert is free to focus on the best interests of the child without concern for the difficulties inherent in presenting testimony adverse to the interest of the client who pays the bill. Courts often prefer such experts because they avoid the intricacies of deciding which of two opposing experts’ testimony to credit. An impartial, court-appointed expert precludes the need for a judge to untangle competing theories or disparate data, but does not guarantee the validity of the expert recommendation. Diamond (1959)has suggested that psychiatric experts provide a professional viewpoint, rather than neutral expertise. Despite the extensive research on divorce, a full understanding of the psychological development of children in differing custody arrangements has not been achieved. Furthermore, applying a research finding that has limited statistical support to a particular child and a special fact situation remains a dubious extrapolation. Questions about appropriate techniques for measuring the strengths of a child’s attachments or proper techniques for evaluating parenting capacity when a parent has clear motives to distort, questions about the relative importance of different factors (such as attachment, parenting capacity, and the child’s preference), and questions as to whether joint custody should be imposed over an objection of one parent, are questions to which there are no consensual answers. Okpaku (1976)has argued that, because of the difficulties in making valid predictions in contested custody cases, mental health professionals should not be used by the courts. Judges also express difficulties evaluating expert
555
psychiatric testimony. Judge Bazelon, Chief Judge of the U.S.Court of Appeals, District of Columbia, a jurist who has long been concerned with psychiatric testimony, has written, “Psychiatry, I suppose, is the ultimate wizardry. My experience has shown that in no case is it more difficult to elicit productive and reliable testimony than in cases that call on the knowledge and practice of psychiatry” (Bazelon, 1974). Judges have further problems with custody cases. Each case needs to be decided on its merits, and few legal rules help simplify decision making. The best interests test, even when component factors are spelled out by statute, remains a fuzzy concept. The old rules of “tender years” presumption and “fault” divorce no longer guide the decision. From a legal perspective, custody cases rarely set legal precedent: the resolution of one case tends not to generate rules which apply in deciding the next. Most courts’ dockets are very full and adequate fact-finding in the courtroom is likely to be time consuming. In chronic visitation disputes, new facts may be generated faster than the court can consider them. Choosing between two adequate parents is a task many judges report to be personally very difficult to make. Mnookin (1975) has termed this awkward position of judges and courts as functioning “in the face of indeterminancy.” As there has been increasing concern in the courts’ capacity to make just determinations in contested custody and visitation cases, there has been increasing emphasis on achieving parental agreement. Parents typically know their children best, have experience making decisions regarding their children, and have an important stake in a satisfying, continuing relationship with their children. There is some evidence that children do better when their parents are able to reach agreements about custody and visitation. A follow-up study of the Denver Mediation Project reported that couples who had successfully mediated agreements on custody and visitation had more joint custodial arrangements, less relitigation, and better post-divorce outcomes on a number of measures, including positive relationship between ex-spouses and amount of contact between the noncustodial parent and the children, when compared to couples who attempted mediation but did not reach agreement and when compared to controls who declined mediation services (Pearson and Thoennes, 1984). An issue which complicates the interpretation of their results was that about half of the couples to whom free mediation was offered rejected the offer. The degree to which positive outcomes associated with mediation reflect self-selection, rather than the mediation process itself, remains unclear. Despite the fact that the formal locus of custody
556
P. ASH AND M. GUYER
decision making rests with the legal system, it appears that courts in general have acquiesced to parental agreement (Despert, 1953).Mnookin and Kornhauser (1979)have discussed the ways in which divorce laws provide “a framework in which divorcing couples can themselves determine their postdissolution rights and responsibilities.” In their analysis of parents’ “bargaining in the shadow of the law,” they identified five factors which influence negotiations: parental preferences, the bargaining chips each parent begins with (which stem from the outcome the law will impose if no agreement is reached), the uncertainties of potential outcomes, the transaction costs (both of time and money) of contesting custody and visitation, and the strategic behaviors parents use in negotiation. The increasing use of joint custody and of divorce mediation signals an increasing emphasis on parental decision making. Joint custody requires parental negotiation both in reaching a decision as to joint custody and maintaining parental involvement in the children’s lives post-divorce. There has been an increase in state programs to provide mediation services either at the request of the parties, or, as in California, to require parents to make an attempt at mediation in contested cases. Johnston et al. (1985)have discussed parent problems which interfere with mediation. Some states are moving toward statutes which explicitly deny the courts the right to review parental agreements about custody and visitation and so leave all decision-making powers for custody in the hands of the parents if they are able to agree during mediation (see, for example, Michigan’s recent law, MCLA §552.513(2)(1984)). The use of presumptions that awarded custody to mothers has given way to a more process-based system in which parental agreement is both desired by the courts and actively encouraged by statute. The best interests of the child, as determined by the courts, are being seen as applicable only in cases in which parents themselves cannot reach agreements concerning their children. Nevertheless, in the literature on conducting custody evaluations, the role of the expert is usually conceptualized as providing evidence which a judge will utilize in making a judgment. There is a strong emphasis on gathering data and testifying in court, although a number of authors point out that evaluation can also function as a treatment intervention for the parents, for the child, or for the family (Berkman, 1984;Derdeyn, 1980; Musetto, 1982). In a previous report (Ash and Guyer, 1984)we presented outcomes of 119 custody evaluations, and noted that evaluators were called to testify in only 5% of evaluated cases. In the cases which did not go to trial, the evaluation did not function as evidence for judicial consideration.
Rather, the evaluation provided information which was utilized by the parties and their attorneys in seeking an out of court resolution, aware, of course, that judicial power loomed in the background. The study reported here was undertaken to help understand how a psychiatric evaluation functions in the resolution of a contested custody or visitation case in the light of recent legal and social changes.
Method Cases for evaluation were referred to a specialized program in a university teaching hospital in the years 1979 to 1983. Our sample of 200 cases (families) was not a random sample of all contested custody cases. A case, to be referred to our program, had to go through a number of filters. When two people decide to divorce, they have an initial opportunity to agree as to the custody of their children. If they do not agree, they go to attorneys with their disagreement, and the attorneys try to negotiate an agreement between their clients. If the attorneys do not settle, parents (in Michigan) are referred to an adjunct investigative agency of the court, and a court worker makes an investigation and issues a recommendation as to custody. If either party disputes that recommendation, the parties (again, in Michigan) may go before a referee for a hearing, a quasi-judicial procedure in which they are represented by counsel, evidence can be introduced, and a record may be made. The referee’s report and conclusions are not binding, but go to the judge. Then, if agreement is still not reached, the parties can go before thc judge and have a formal hearing. If the case appears to be heading for trial, the judge has the option of referring the case via a court order to an outside community resource. Our program is one such community resource. Cases have been referred to our program at all decision points in this sequence, but usually a judge signed the order of referral. Many referrals were initiated by the investigative agency of the court. The cases referred to us were generally seen by the referring personnel as especially difficult. Seventy-fivepercent of cases were referred from the county court in which the clinic is located; the remainder were referred by other courts around the state. In the local jurisdiction, the referral rate for pre-divorce cases was about 1% of new divorce cases involving minor children. Evaluations were structured so that the evaluator advocated the best interests of the child, was not beholden to one side, and was assured that confidentiality constraints would not prevent his evaluation from reaching the court. The following evaluation ground rules were used (1)cases were accepted only by court order or upon stipulation by the parties (a case was not accepted if requested by only one party);
EVALUATIONS IN CUSTODY CASES
(2) all parties to the litigation (parents, children, other litigants) agreed or were ordered to participate; (3) each party paid for his or her own portion of the evaluation according to an ability-to-pay scale (unless other arrangements for payment were made in advance); and (4) the evaluation reports with recommendations were sent to the court and attorneys for both sides (in effect, a waiver of patient-professional confidentiality). Seventy-two different evaluators participated in conducting evaluations. Approximately half of the evaluations were conducted by trainees, half by faculty or staff. An evaluation generally consisted of from 8 to 12 clinical interviews, although some ran to as many as 25 interviews, and included individual interviews of parents and children, joint interviews with each parent and the children, and concluding interpretive interviews in which recommendations were discussed with each party. Evaluations frequently included a joint interview with both parents and interviews with other involved persons such as relatives and stepparents. Interviews were not held with attorneys. Submitted reports were generally extensive and were provided to the attorneys as well as the court. The disposition of cases was obtained from court records. The median time from submission of the evaluation report to the entering of a final order was 5 months. For post-divorce cases, if the court record showed no legal activity in the 2-year period following the evaluation, the case was coded “petition dropped.” It was often difficult to ascertain from the court record whether the final order stemmed from a trial or whether the order reflected a consent agreement. If the manner of resolution was unclear, attorneys were contacted by mail and by telephone to provide more specific history of the case’s resolution. Additionally, a sample of judges and attorneys involved in these custody cases were individually interviewed to provide more detailed information regarding the processes of negotiation and resolution.
Results In the 149 cases in which a custody recommendation was made, evaluators recommended custody to mothers in 50% of cases, to fathers in 31%, joint custody in 1576, and to other relatives or foster care in 4%. (The background rates in the local jurisdiction for a random sample of 540 nonreferred cases were mother custody, 79%,father custody, 5%,joint custody, lo%, other, 6%.)The judgment of divorce or final order (in post-divorce actions) were in accord with the evaluators’ custody recommendations in 85%of cases. In the 189 cases in which visitation was addressed, liberal visits (four or more days per month with overnights) were recommended in 76% of cases, limited visits in
557
8%,supervised visits in 6%, different levels for different children in the family in 2%, and visits at the discretion of the custodial parent or of the child in 8%.These recommendationswere in accord with final judicial orders in 93% of cases. The point in the course of the dispute at which resolutions were reached is shown in Table 1.
Evaluation as Evidence As can be seen in Table 1, only 11% of evaluated cases went to trial or an evidentiary hearing. The evaluator testified in about one-third of such hearings. In cases in which the evaluator testified, his recommendation was adopted by the court two-thirds of the time. In cases which went to trial but in which the evaluator did not testify, the evaluator’s recommendation as to custody was adopted 89%of the time, and recommendations regarding visitation were adopted 100% of the time. While an expert evaluation is generally perceived as providing formal evidence to a judge who makes a final decision, this role proved to be an exceptional one in our sample of cases. In the great majority of cases, the judge was not called upon and hence did not act as a fact finder. Instead, the dispute was resolved without recourse to a formal evidentiary hearing. There is a need for a locus of decision-making so that some cases do not drag on forever, but judicial decision, in our sample, was infrequent and a resolution of last resort. Evaluation as Bargaining Chip In 71% of cases, after hearing the evaluator’s recommendation, the parties either stopped litigating (8%)or reached a negotiated agreement which was then entered as a consent judgment (63%).Most cases were settled by the bar, not the bench. In these cases, the evaluator’s recommendation was used as a bargaining chip in negotiations between the parties and their attorneys, and these negotiations led to a resolution of the custody/visitation dispute. In most cases, the clinician from the investigative agency of the court issued a recommendation in accord with the evaluator’s recommendation, which gave it greater weight. Interviewswith judges, attorneys, and litigating parties suggested that the most important reason why the parties were able to negotiate an agreement out of court was that the evaluator’s recommendation was seen as predicting the eventual outcome, so there was little point in paying the emotional and financial costs of a full trial. Judges reported that, usually, they would have little reason to question the substance of the reports or the expert recommendations. Attorneys reported in several instances that judges signaled that if the case proceeded to trial and they had to decide,
558
P. ASH AND M. GUYER TABLE 1 Point of Resolution of Contested CwtodylVisitation Disputes (%) Q p e of Case Pre-divorce
Point of Resolution
Parents came to agreement during course of evaluation Parents agreed with recommendation Petition dropped or dismissed after evaluation Parents entered consent agreement after evaluation Case went to trial, evaluator did not testify Evaluator did testify
Post-divorce
Visitation ( N = 11)
10
18
3
13
9
7 1
27 0
10 18
10 13
9 8
70
46
61
53
63
7 5
9 0
3 5
8 3
4
100
100
100
100
100
they would do so in accord with the recommendation of the mental health professional. Attorneys expected that judges would rely on the report, and some attorneys used the report as a way of convincing a client there was little reason to pursue further litigation (in effect, the expert recommendation became an aid in “client control”). A number of parents, during the evaluation, expressed to the evaluator their belief that the evaluator would decide the custody question and were unimpressed by being told the evaluator would only be making a recommendation which they, their attorneys, and the judge could consider. It appears that the fact-finding of the evaluation largely supplanted the fact-finding of the court. Parents referred for court ordered evaluation were typically deadlocked at a point in the divorce process where they were not able to continue bargaining. While parents’ reasons for not continuing to bargain were complex and sometimes unclear, most often they saw no incentive to bargain either because they thought further negotiation would gain them little or because they were so furious with their spouses that reasonable discussion appeared impossible. One function of an evaluation was to confront the parents’ avoidance of each other by holding a joint interview, and parents often found that the presence of an evaluator-referee facilitated useful discussion. Often both parents, preoccupied with their own needs and feelings of loss, saw themselves as in the right, and they expected the evaluator to see things their way. The evaluation appeared to help some parents appreciate there was another point of view besides their own. The evaluation gave the parties an opportunity to present their case in detail, probably in more detail than they would be afforded in court. Having presented their case, they may have felt more able to accept the outcome. Also, after they learned the eval-
Custody ( N = 58)
Total ( N = 200)
Custody ( N = 93)
Visitation ( N = 38)
I
uator’s recommendation, their bargaining positions were changed. Both parties often then thought they stood to gain in bargaining: the party against whom the recommendation was formulated could use the offer of staying out of court in exchange for more acceptable visitation, child support, or property settlement. Finally, parental bargaining to a resolution is a form of accepting the divorce. Parents continue to interact via child issues post-divorce, and the reconciliation inherent in reaching an agreement on custody, visitation and support, rather than submitting to a judicially imposed solution, supports parental autonomy, and may cause the post-divorce course to go more smoothly.
Evaluation as Mediation As we gained experience conducting evaluations, we noted that, in 1 out of 11 cases, the parents reached agreement during the course of the evaluation. In a similar proportion of cases, both parties agreed to the evaluator’s recommendations at the conclusion of the evaluation. We found this surprising: cases were typically referred after those associated with the case thought voluntary agreement impossible. Seeing that this was not always so, we undertook a more active role in promoting agreement. In the initial interviews of the evaluation, evaluators emphasized that parents knew their children best, and if the parents could reach agreement, the evaluator would review and probably endorse it. Evaluators then explored whether the parents had a particular stumbling block to achieving their own resolution. If such a stumbling block was found, the evaluator explored whether it could be resolved. The evaluator made clear that if the parents could not settle their dispute, a full evaluation would follow. This alone made intrafamily settlements more attractive. While encouraging parents to negotiate a resolution is a form of mediation, the ground rules
EVALUATIONS IN CUSTODY CASES
were quite ’different from the more usual form of divorce mediation in which the mediator limits his role to being a facilitator who will not formulate his own recommendation to the court in the event mediation is unsuccessful. About three quarters of cases which were ultimately “mediated”reached a resolution quite quickly, within two or three sessions. If parents appeared unable to make a rapid resolution, the evaluator proceeded with the evaluation. As data were gathered, the evaluator inquired about the acceptability of various hypothetical custodial arrangements, which further clarified stumbling blocks to the parties’ own negotiations. Few custody cases were resolved in this phase, although evaluators’ actions appeared to help some parents accept the final recommendation. Clarification during the evaluation process of issues which were barring agreement was particularly important in visitation disputes. Courts have limited powers to enforce visitation arrangements. Unlike custody determinations, ongoing visitation requires a moderate level of acceptance by all parties. Clarification took various forms. For example, in a number of visitation disputes, the custodial parent was seeking to terminate visitation because her preschool child was anxious or difficult to manage when he returned from a visit. The custodial parent saw this as a sign that visits were detrimental to the child, and often suspected the visiting parent was behaving badly. The visiting parent, on the other hand, observing a happy and playful child during visits, thought visits were going well and was angry at the custodian for “making up trouble.” The evaluator could frequently help both parents see-sometimes by having them watch the child and other parent through a oneway mirror-that each was accurately describing his or her time with the child. If the parents could understand that, they were more open to hearing the evaluator’s discussion of why their child behaved as he did. They could then appreciate their child’s feelings about the parental separation and recognize that these feelings became more intense and overt after a visit. They could learn to understand the child’s behavior as reflecting the child’s conflicts, rather than as reflecting distortions and bad behavior of the other parent. The parents could then go on to agree to continued visitation, and were better able to assist their child with his feelings. Often, after the initial discussion with the evaluator, parents reported that their child was calmer following visitation.
Evaluation as Treatment Helping parents understand each other and their children, often done as part of an effort at mediation, has similarities to a parent guidance treatment intervention. While evaluators did not engage in formal
559
psychotherapy with clients, participants sometimes reached new insights as a consequence of putting their feelings into words and hearing the evaluator’s clarifications and interpretations about their statements. A number of parents, initially concerned that their children would find the evaluation a stressful experience, later reported their children to do better after talking with the evaluator. Some parents who could not reach agreement with each other nevertheless appeared accepting of a final adverse recommendation. Such parents often said they could understand how the evaluator saw the situation, or they were reassured knowing the evaluator thought the recommended outcome was best for their child. For these parents, the evaluator appeared to be a powerful, but benign figure with whom they could agree, thus obviating some of the difficulty they would have had in “giving in” to a spouse at whom they were furious. Others appeared to gain some relief simply by being listened to as they presented their case fully. Evaluators frequently provided information about normal child development and children’s responses to divorce which many parents found helpful. Some parents expressly requested such information. Discussing a child’s development was a useful way to help parents focus on their child’s best interest. Apart from utilizing such information, focusing on the child appeared helpful to many parents, preoccupied with their own needs and consumed in a heated dispute with their spouses, to gain some distance from the strife of the marital relationship.
Discussion Our findings regarding the role of psychiatric evaluation in contested custody and visitation cases suggest that viewing a custody evaluation as a mechanism for providing evidence to be formally considered by a fact finder is an overly narrow perspective. The courts appear to be motivated to promote out-of-court settlements, and utilize pretrial referral for a mental health evaluation as one type of alternative dispute resolution. In our sample, this alternative to trial was successful in 89%of cases. In this regard, the local courts are behaving in a manner consistent with an increasing trend to promote resolution of disputes without resorting to formal judicial decision making. Our specific results are, of course, limited by such uncontrolled factors as the particulars of Michigan statutes and court rules, the particular methods used for evaluation, the reputation and relationship of our program with courts and attorneys, and nonrandom sampling of contested custody cases. Nevertheless, our experience illustrates that psychiatric evaluations play a variety of functions in the process of dispute resolution over and above providing evidence to a judge. An
560
P. ASH AND M. GUYER
evaluator who functions as an appointee of the court exerts considerable influence which derives in large part from the shadow of judicial power which looms behind him. This model has implications for the conduct of a court-ordered evaluation. Recognizing the potential functions of an evaluation other than providing evidence for trial allows an evaluator to utilize his role to further the resolution of the dispute. The evaluator should remain open to the possibility of parental resolution and not take the referral as meaning the parents are unable to negotiate a solution. We suggest that the evaluator can properly take on the role of diagnosing the cause of the difficulty parties have in reaching their own agreement, and be open to expand his role from gathering evidence to facilitating an intrafamily resolution. Such an expanded approach may invite criticism on the grounds that the evaluator is taking on a role beyond that delegated to him by the court, by the attorneys, or by the parties themselves. Judges, attorneys, and the parties want cases settled, but may not be ready to acknowledge they are delegating anything more than an evaluating function to a mental health professional. Diagnosing the difficulty parties have in reaching an agreement is an appropriate part of the evaluative function. If agreement appears possible, then the issue of the evaluator’s change of role needs to be handled with care. If the evaluator decides that he will suspend his “evaluation as evidence for the court” approach while parental resolution goes forward, this should be made clear to the parties, the attorneys, and the court. All those involved with the case stand to gain if out-of-court resolution is achieved. The evaluator then needs to work out with the parties his role in the resolution process. This may vary from becoming a mediator who will resume an evaluation in the event mediation fails, to helping the parties think through an agreement which they then take to their attorneys for formal legal implementation, to explicit referral to a designated mediator where the work would be done confidentially with resumption of the evaluation in the event mediation breaks down. If this choice is left to the parties and their attorneys, they should have little objection to the route they choose. In the model of judicial functioning we describe, the courts prefer dispute resolution which is accomplished by the parties, and so typically have little objection to new attempts being made towards nonjudicial resolution. Does attending to the potential for parental resolution interfere with the process of evidence collection formally delegated to the evaluator by the court? Often parenting difficulties are highlighted by clarifying the
conflicts between parents which prevent them from reaching a resolution. Looking to the source of conflict also provides the evaluator with knowledge of the context in which the dispute arose. When resolution appears possible, there is a suspension of evidence collecting, but we suggest the cost of this delay is outweighedby the benefits which accrue if the parents can reach resolution. One problem that may develop, although in our sample was infrequent, is that the parties reach a resolution which is not, in the evaluator’s view, in the best interests of the children. Recall that the threat of Solomon’s sword promoted a proposed resolution between the two contesting women which Solomon did not accept. Different jurisdictions reach different results in such cases, depending on whether the applicable statutes and precedents favor the attainment of parental resolution or instead look to independent criteria which address the child’s best interests. The role of the evaluator is to place this determination before the court. The majority of our cases did not settle during the evaluation, and the evaluator’s written report became a bargaining chip in negotiations. Anticipating that the report will be used as a factor in parental negotiation, the evaluator can modify the way he prepares his report. First, by focusing on the best interests of the child, the evaluator may achieve a shift in the parents’ views from an adversarial “I want what’s mine” position to a more child-centered focus. Watson (1977) explicitly advocates this approach when he recommends meeting with attorneys at the conclusion of the evaluation in an attempt to persuade them to resolve the case along the lines of his recommendation. Second, we suggest the evaluator should set out his views regarding the children’s best interests in a manner which is persuasive. This requires presenting reasoning and data in addition to spelling out the evaluator’s recommendations. A persuasive report promotes out of court resolution primarily because it increases the predictability of a trial outcome. It is largely the parent (and his or her attorney) who stands to lose if the evaluator’s recommendation is implemented who determines whether a trial is worth the effort and expense. The evaluator should therefore take care to write a balanced report, citing parental strengths as well as weaknesses, to minimize alienating either of the parties. Later reports from parents suggested that parents who felt they had had a fair hearing in the evaluator’s office were less likely to proceed to trial than those who felt the evaluator was biased against them. Interpretive interviews with parents in which the evaluator discussed his findings with each parent and informed them as to what would be written also
EVALUATIONS I N CUSTODY CASES
appeared to help parents accept the evaluator’s conclusions. Third, the report may explicitly delineate areas in which bargaining can take place. For example, a report might emphasize those qualities and strengths which each parent offers the children, express regret that in the current climate of animosity the parents are unable to make their assets available to their children, and express the view that if that hostility could be resolved, then different recommendations would be appropriate. Giving parents an invitation to do what is best for their children, while acknowledging the pain involved in giving up some personal demands, is an invitation to a higher level of functioning which many parents find supportive. Evaluators often took comfort in the thought that a judge would make the final, difficult decision. In our sample, this hope was usually an illusion: the appointment of an evaluator by the court usually functioned as a delegation of fact-finding to the mental health expert. In such a situation, it is all the more important that an evaluator carefully assess the case, because he or she will in all likelihood be making a determination which will have a massive effect on the lives of the children and parents. Society and the law are increasingly cognizant of the limits of psychiatric prediction and are supporting and encouraging divorcing parents to make decisions regarding their children. An evaluator in a contested custody or visitation case is in a position in which he can promote that process.
References AMERICANPSYCHIATRIC ASSOCIATION(1982), Child Custody Consultation. Washington, D.C.: APA.
561
ASH, P. & GUYER,M. J. (1984), Court implementation of mental health professionals’ recommendations in contested child custody and visitation cases. Bull. Amer. Acad. Psychiat. Law, 12:137148. BAZELON, D. L. (1974), Psychiatrists and the adversary process. Sci. Amer., 230(6):18. BERKMAN, C . F. (1984), Psychodynamic and family issues in postdivorce child custody litigation, This Journnl, 23708-712. DERDEYN, A. P. (1975), Child custody consultation. Amer. J. Orthpsychiat., 45:791-801. -(1980), Divorce and children: clinical interventions with children and their parents. Psychiatr. Ann., 1O:l-29. DESPERT,J. (1953). Children of Divorce, citing a 1948 American Bar Association report. Garden City, N.J.: Doubleday, p. 189. DIAMOND, B. L. (1959), The fallacy of the impartial expert. Arch. Crim. Psychdyn., 3:221-235. FREED,D. J. & FOSTER,H. H. (1978), Divorce in the fifty states: an overview as of August 9, 1978. Family Law Reporter, August 2, 1978, 4(41):4033-4041. GARDNER, R. A. (1982), Family Evaluation in Child Custody Litigation. Cresskill, N.J.: Creative Therapeutics. J., FREUD,A. & SOLNIT, A. J. (19731, Beyond the Best GOLDSTEIN, Interests of the Child. New York Free Press. JOHNSTON, J., CAMPBELL, L. & TALL,M. (1985), Impasses to the resolution of custody and visitation disputes. Amer. J. Orthopsychiat., 55~112-129. MICHIGAN COMP. LAWS,ANN. $552.513(2), 1984. MNOOKIN, R. (1975), Child custody adjudication: judicial functions in the face of indeterminacy. Law Contemp. Prob., 39226-293. & KORNHAUSER, L. (1979), Bargaining in the shadow of the law: The case of divorce. Y& Law J., 88:950-997. MUSETTO,A. P. (1982), Dilemmas in Child Custody. Chicago: Nelson-Hall. OKPAKU,S. R. (1976), Psychology: impediment or aid in child custody cases? Rutgers Law Rev., 291117-1153. PEARSON, J. & THOENNES, N. (1984), Mediating and litigating custody disputes: a longitudinal evaluation. Fam. Law Quart., 17~497-524. WATSON, A. (1977), Child custody problems during divorce. Weekly Psychiatry Update Series, Lesson 2, Vol. 2.
-
tional law eroded the effectiveness of these simplifying presumptions. By 1978, the tender years doctrine had either been rejected or relegated to the role of tie breaker in most states, and fault-based divorce remained in only three states (Freed and Foster, 1978). These developments invited increased litigation in child custody matters since the outcomes of litigation became more uncertain. The increasing use of joint custodial arrangements further added to the complexity of decision making. Instead of a dichotomous choice between two competing sole custodians, courts and parents also had to consider various forms of joint custody. With the emphasis on “best interests” tests to decide child custody issues, psychological questions became increasingly relevant: what was best for the child became the statutory basis for resolving a child custody contest, and best interests were taken to be a factual question. As judicial uncertainty mounted, mental health professionals, especially since the publication and wide discussion of Beyond the Best Interests of the Child (Goldstein et al., 1973),have increasingly offered their expertise in defining the child’s best interests. The use of expert opinion in custody cases promised to remove much of the expensive and timeconsuming fact-finding from the courtroom and place it into the hands of mental health professionals. Some courts utilize in-house experts, clinicians who regularly gather information and make recommendations to the court. Since experts are allowed to testify as to conclusions as well as matters of fact, the in-court fact-finding process was streamlined the expert con-
For many years, courts and legislatures dealt with the difficulties of managing custody cases arising from divorce actions by the use of simplifying devices. One of these was the “tender years” doctrine, an evidentiary assumption which held that children should be raised by their mothers. Another simplifying mechanism for the efficient management of custody cases derived from traditional “fault-based” divorce in which one party was at fault for breaching the marital contract and the other party was held blameless. Given the usual grounds for fault-based divorce, husbands were typically in breach of contract and so were “at fault.” Once “fault” was established, the custody matter, if contested, was decided upon fault-based considerations rather than the child’s “best interest.” A combination of the tender years presumption and fault-based divorce allowed an almost automatic resolution of custody contests in favor of mothers. This result served several judicial purposes: it minimized litigation, since the expected outcome for potential contestants was clear; it allowed application of a simple rule without the necessity of formal fact-finding and it freed the judge from accepting the individual responsibility for making a difficult decision. Changes in domestic relations law and constituReceived January 29, 1986. Dr. Ash is an Assistant Professor and Dr. Guyer is an Associate Professor with the Family and Law Program, Department of Psychiatry, University of Michigan. Reprints may be requested from Peter Ash, M.D., Children’s Psychiatric Hospital, Box 0706, University of Michigan, Ann Arbor, MI 48109. O002-7138/86/2504-0554 $02.00/0 0 1986 by the American Academy of Child Psychiatry. 554
EVALUATIONS IN CUSTODY CASES
ducted the necessary fact-finding related to the best interests test outside the courtroom and presented the data and conclusions based upon his fact-finding inside the courtroom. From the court’s point of view, the use of expert testimony in these cases serves a purpose essentially the same as the earlier use of presumptions and “fault.” It reduces-for the courtsthe difficulties and expenses of deciding contested custody cases. With increasing use of mental health experts by courts, the role of mental health experts has come in for reexamination. The traditional courtroom expert is retained by one party and serves the interest of the party who foots the bill. This is of special concern in custody cases because the children whose interest is being determined are not parties before the court. A growing number of psychiatrists (see, for example, the American Psychiatric Association (1982), Derdeyn (1975)and Gardner, 1982)argue that psychiatrists are most useful if they serve as impartial experts acting as witnesses for the court rather than as an expert retained by one party. Such a nonparty expert is free to focus on the best interests of the child without concern for the difficulties inherent in presenting testimony adverse to the interest of the client who pays the bill. Courts often prefer such experts because they avoid the intricacies of deciding which of two opposing experts’ testimony to credit. An impartial, court-appointed expert precludes the need for a judge to untangle competing theories or disparate data, but does not guarantee the validity of the expert recommendation. Diamond (1959)has suggested that psychiatric experts provide a professional viewpoint, rather than neutral expertise. Despite the extensive research on divorce, a full understanding of the psychological development of children in differing custody arrangements has not been achieved. Furthermore, applying a research finding that has limited statistical support to a particular child and a special fact situation remains a dubious extrapolation. Questions about appropriate techniques for measuring the strengths of a child’s attachments or proper techniques for evaluating parenting capacity when a parent has clear motives to distort, questions about the relative importance of different factors (such as attachment, parenting capacity, and the child’s preference), and questions as to whether joint custody should be imposed over an objection of one parent, are questions to which there are no consensual answers. Okpaku (1976)has argued that, because of the difficulties in making valid predictions in contested custody cases, mental health professionals should not be used by the courts. Judges also express difficulties evaluating expert
555
psychiatric testimony. Judge Bazelon, Chief Judge of the U.S.Court of Appeals, District of Columbia, a jurist who has long been concerned with psychiatric testimony, has written, “Psychiatry, I suppose, is the ultimate wizardry. My experience has shown that in no case is it more difficult to elicit productive and reliable testimony than in cases that call on the knowledge and practice of psychiatry” (Bazelon, 1974). Judges have further problems with custody cases. Each case needs to be decided on its merits, and few legal rules help simplify decision making. The best interests test, even when component factors are spelled out by statute, remains a fuzzy concept. The old rules of “tender years” presumption and “fault” divorce no longer guide the decision. From a legal perspective, custody cases rarely set legal precedent: the resolution of one case tends not to generate rules which apply in deciding the next. Most courts’ dockets are very full and adequate fact-finding in the courtroom is likely to be time consuming. In chronic visitation disputes, new facts may be generated faster than the court can consider them. Choosing between two adequate parents is a task many judges report to be personally very difficult to make. Mnookin (1975) has termed this awkward position of judges and courts as functioning “in the face of indeterminancy.” As there has been increasing concern in the courts’ capacity to make just determinations in contested custody and visitation cases, there has been increasing emphasis on achieving parental agreement. Parents typically know their children best, have experience making decisions regarding their children, and have an important stake in a satisfying, continuing relationship with their children. There is some evidence that children do better when their parents are able to reach agreements about custody and visitation. A follow-up study of the Denver Mediation Project reported that couples who had successfully mediated agreements on custody and visitation had more joint custodial arrangements, less relitigation, and better post-divorce outcomes on a number of measures, including positive relationship between ex-spouses and amount of contact between the noncustodial parent and the children, when compared to couples who attempted mediation but did not reach agreement and when compared to controls who declined mediation services (Pearson and Thoennes, 1984). An issue which complicates the interpretation of their results was that about half of the couples to whom free mediation was offered rejected the offer. The degree to which positive outcomes associated with mediation reflect self-selection, rather than the mediation process itself, remains unclear. Despite the fact that the formal locus of custody
556
P. ASH AND M. GUYER
decision making rests with the legal system, it appears that courts in general have acquiesced to parental agreement (Despert, 1953).Mnookin and Kornhauser (1979)have discussed the ways in which divorce laws provide “a framework in which divorcing couples can themselves determine their postdissolution rights and responsibilities.” In their analysis of parents’ “bargaining in the shadow of the law,” they identified five factors which influence negotiations: parental preferences, the bargaining chips each parent begins with (which stem from the outcome the law will impose if no agreement is reached), the uncertainties of potential outcomes, the transaction costs (both of time and money) of contesting custody and visitation, and the strategic behaviors parents use in negotiation. The increasing use of joint custody and of divorce mediation signals an increasing emphasis on parental decision making. Joint custody requires parental negotiation both in reaching a decision as to joint custody and maintaining parental involvement in the children’s lives post-divorce. There has been an increase in state programs to provide mediation services either at the request of the parties, or, as in California, to require parents to make an attempt at mediation in contested cases. Johnston et al. (1985)have discussed parent problems which interfere with mediation. Some states are moving toward statutes which explicitly deny the courts the right to review parental agreements about custody and visitation and so leave all decision-making powers for custody in the hands of the parents if they are able to agree during mediation (see, for example, Michigan’s recent law, MCLA §552.513(2)(1984)). The use of presumptions that awarded custody to mothers has given way to a more process-based system in which parental agreement is both desired by the courts and actively encouraged by statute. The best interests of the child, as determined by the courts, are being seen as applicable only in cases in which parents themselves cannot reach agreements concerning their children. Nevertheless, in the literature on conducting custody evaluations, the role of the expert is usually conceptualized as providing evidence which a judge will utilize in making a judgment. There is a strong emphasis on gathering data and testifying in court, although a number of authors point out that evaluation can also function as a treatment intervention for the parents, for the child, or for the family (Berkman, 1984;Derdeyn, 1980; Musetto, 1982). In a previous report (Ash and Guyer, 1984)we presented outcomes of 119 custody evaluations, and noted that evaluators were called to testify in only 5% of evaluated cases. In the cases which did not go to trial, the evaluation did not function as evidence for judicial consideration.
Rather, the evaluation provided information which was utilized by the parties and their attorneys in seeking an out of court resolution, aware, of course, that judicial power loomed in the background. The study reported here was undertaken to help understand how a psychiatric evaluation functions in the resolution of a contested custody or visitation case in the light of recent legal and social changes.
Method Cases for evaluation were referred to a specialized program in a university teaching hospital in the years 1979 to 1983. Our sample of 200 cases (families) was not a random sample of all contested custody cases. A case, to be referred to our program, had to go through a number of filters. When two people decide to divorce, they have an initial opportunity to agree as to the custody of their children. If they do not agree, they go to attorneys with their disagreement, and the attorneys try to negotiate an agreement between their clients. If the attorneys do not settle, parents (in Michigan) are referred to an adjunct investigative agency of the court, and a court worker makes an investigation and issues a recommendation as to custody. If either party disputes that recommendation, the parties (again, in Michigan) may go before a referee for a hearing, a quasi-judicial procedure in which they are represented by counsel, evidence can be introduced, and a record may be made. The referee’s report and conclusions are not binding, but go to the judge. Then, if agreement is still not reached, the parties can go before thc judge and have a formal hearing. If the case appears to be heading for trial, the judge has the option of referring the case via a court order to an outside community resource. Our program is one such community resource. Cases have been referred to our program at all decision points in this sequence, but usually a judge signed the order of referral. Many referrals were initiated by the investigative agency of the court. The cases referred to us were generally seen by the referring personnel as especially difficult. Seventy-fivepercent of cases were referred from the county court in which the clinic is located; the remainder were referred by other courts around the state. In the local jurisdiction, the referral rate for pre-divorce cases was about 1% of new divorce cases involving minor children. Evaluations were structured so that the evaluator advocated the best interests of the child, was not beholden to one side, and was assured that confidentiality constraints would not prevent his evaluation from reaching the court. The following evaluation ground rules were used (1)cases were accepted only by court order or upon stipulation by the parties (a case was not accepted if requested by only one party);
EVALUATIONS IN CUSTODY CASES
(2) all parties to the litigation (parents, children, other litigants) agreed or were ordered to participate; (3) each party paid for his or her own portion of the evaluation according to an ability-to-pay scale (unless other arrangements for payment were made in advance); and (4) the evaluation reports with recommendations were sent to the court and attorneys for both sides (in effect, a waiver of patient-professional confidentiality). Seventy-two different evaluators participated in conducting evaluations. Approximately half of the evaluations were conducted by trainees, half by faculty or staff. An evaluation generally consisted of from 8 to 12 clinical interviews, although some ran to as many as 25 interviews, and included individual interviews of parents and children, joint interviews with each parent and the children, and concluding interpretive interviews in which recommendations were discussed with each party. Evaluations frequently included a joint interview with both parents and interviews with other involved persons such as relatives and stepparents. Interviews were not held with attorneys. Submitted reports were generally extensive and were provided to the attorneys as well as the court. The disposition of cases was obtained from court records. The median time from submission of the evaluation report to the entering of a final order was 5 months. For post-divorce cases, if the court record showed no legal activity in the 2-year period following the evaluation, the case was coded “petition dropped.” It was often difficult to ascertain from the court record whether the final order stemmed from a trial or whether the order reflected a consent agreement. If the manner of resolution was unclear, attorneys were contacted by mail and by telephone to provide more specific history of the case’s resolution. Additionally, a sample of judges and attorneys involved in these custody cases were individually interviewed to provide more detailed information regarding the processes of negotiation and resolution.
Results In the 149 cases in which a custody recommendation was made, evaluators recommended custody to mothers in 50% of cases, to fathers in 31%, joint custody in 1576, and to other relatives or foster care in 4%. (The background rates in the local jurisdiction for a random sample of 540 nonreferred cases were mother custody, 79%,father custody, 5%,joint custody, lo%, other, 6%.)The judgment of divorce or final order (in post-divorce actions) were in accord with the evaluators’ custody recommendations in 85%of cases. In the 189 cases in which visitation was addressed, liberal visits (four or more days per month with overnights) were recommended in 76% of cases, limited visits in
557
8%,supervised visits in 6%, different levels for different children in the family in 2%, and visits at the discretion of the custodial parent or of the child in 8%.These recommendationswere in accord with final judicial orders in 93% of cases. The point in the course of the dispute at which resolutions were reached is shown in Table 1.
Evaluation as Evidence As can be seen in Table 1, only 11% of evaluated cases went to trial or an evidentiary hearing. The evaluator testified in about one-third of such hearings. In cases in which the evaluator testified, his recommendation was adopted by the court two-thirds of the time. In cases which went to trial but in which the evaluator did not testify, the evaluator’s recommendation as to custody was adopted 89%of the time, and recommendations regarding visitation were adopted 100% of the time. While an expert evaluation is generally perceived as providing formal evidence to a judge who makes a final decision, this role proved to be an exceptional one in our sample of cases. In the great majority of cases, the judge was not called upon and hence did not act as a fact finder. Instead, the dispute was resolved without recourse to a formal evidentiary hearing. There is a need for a locus of decision-making so that some cases do not drag on forever, but judicial decision, in our sample, was infrequent and a resolution of last resort. Evaluation as Bargaining Chip In 71% of cases, after hearing the evaluator’s recommendation, the parties either stopped litigating (8%)or reached a negotiated agreement which was then entered as a consent judgment (63%).Most cases were settled by the bar, not the bench. In these cases, the evaluator’s recommendation was used as a bargaining chip in negotiations between the parties and their attorneys, and these negotiations led to a resolution of the custody/visitation dispute. In most cases, the clinician from the investigative agency of the court issued a recommendation in accord with the evaluator’s recommendation, which gave it greater weight. Interviewswith judges, attorneys, and litigating parties suggested that the most important reason why the parties were able to negotiate an agreement out of court was that the evaluator’s recommendation was seen as predicting the eventual outcome, so there was little point in paying the emotional and financial costs of a full trial. Judges reported that, usually, they would have little reason to question the substance of the reports or the expert recommendations. Attorneys reported in several instances that judges signaled that if the case proceeded to trial and they had to decide,
558
P. ASH AND M. GUYER TABLE 1 Point of Resolution of Contested CwtodylVisitation Disputes (%) Q p e of Case Pre-divorce
Point of Resolution
Parents came to agreement during course of evaluation Parents agreed with recommendation Petition dropped or dismissed after evaluation Parents entered consent agreement after evaluation Case went to trial, evaluator did not testify Evaluator did testify
Post-divorce
Visitation ( N = 11)
10
18
3
13
9
7 1
27 0
10 18
10 13
9 8
70
46
61
53
63
7 5
9 0
3 5
8 3
4
100
100
100
100
100
they would do so in accord with the recommendation of the mental health professional. Attorneys expected that judges would rely on the report, and some attorneys used the report as a way of convincing a client there was little reason to pursue further litigation (in effect, the expert recommendation became an aid in “client control”). A number of parents, during the evaluation, expressed to the evaluator their belief that the evaluator would decide the custody question and were unimpressed by being told the evaluator would only be making a recommendation which they, their attorneys, and the judge could consider. It appears that the fact-finding of the evaluation largely supplanted the fact-finding of the court. Parents referred for court ordered evaluation were typically deadlocked at a point in the divorce process where they were not able to continue bargaining. While parents’ reasons for not continuing to bargain were complex and sometimes unclear, most often they saw no incentive to bargain either because they thought further negotiation would gain them little or because they were so furious with their spouses that reasonable discussion appeared impossible. One function of an evaluation was to confront the parents’ avoidance of each other by holding a joint interview, and parents often found that the presence of an evaluator-referee facilitated useful discussion. Often both parents, preoccupied with their own needs and feelings of loss, saw themselves as in the right, and they expected the evaluator to see things their way. The evaluation appeared to help some parents appreciate there was another point of view besides their own. The evaluation gave the parties an opportunity to present their case in detail, probably in more detail than they would be afforded in court. Having presented their case, they may have felt more able to accept the outcome. Also, after they learned the eval-
Custody ( N = 58)
Total ( N = 200)
Custody ( N = 93)
Visitation ( N = 38)
I
uator’s recommendation, their bargaining positions were changed. Both parties often then thought they stood to gain in bargaining: the party against whom the recommendation was formulated could use the offer of staying out of court in exchange for more acceptable visitation, child support, or property settlement. Finally, parental bargaining to a resolution is a form of accepting the divorce. Parents continue to interact via child issues post-divorce, and the reconciliation inherent in reaching an agreement on custody, visitation and support, rather than submitting to a judicially imposed solution, supports parental autonomy, and may cause the post-divorce course to go more smoothly.
Evaluation as Mediation As we gained experience conducting evaluations, we noted that, in 1 out of 11 cases, the parents reached agreement during the course of the evaluation. In a similar proportion of cases, both parties agreed to the evaluator’s recommendations at the conclusion of the evaluation. We found this surprising: cases were typically referred after those associated with the case thought voluntary agreement impossible. Seeing that this was not always so, we undertook a more active role in promoting agreement. In the initial interviews of the evaluation, evaluators emphasized that parents knew their children best, and if the parents could reach agreement, the evaluator would review and probably endorse it. Evaluators then explored whether the parents had a particular stumbling block to achieving their own resolution. If such a stumbling block was found, the evaluator explored whether it could be resolved. The evaluator made clear that if the parents could not settle their dispute, a full evaluation would follow. This alone made intrafamily settlements more attractive. While encouraging parents to negotiate a resolution is a form of mediation, the ground rules
EVALUATIONS IN CUSTODY CASES
were quite ’different from the more usual form of divorce mediation in which the mediator limits his role to being a facilitator who will not formulate his own recommendation to the court in the event mediation is unsuccessful. About three quarters of cases which were ultimately “mediated”reached a resolution quite quickly, within two or three sessions. If parents appeared unable to make a rapid resolution, the evaluator proceeded with the evaluation. As data were gathered, the evaluator inquired about the acceptability of various hypothetical custodial arrangements, which further clarified stumbling blocks to the parties’ own negotiations. Few custody cases were resolved in this phase, although evaluators’ actions appeared to help some parents accept the final recommendation. Clarification during the evaluation process of issues which were barring agreement was particularly important in visitation disputes. Courts have limited powers to enforce visitation arrangements. Unlike custody determinations, ongoing visitation requires a moderate level of acceptance by all parties. Clarification took various forms. For example, in a number of visitation disputes, the custodial parent was seeking to terminate visitation because her preschool child was anxious or difficult to manage when he returned from a visit. The custodial parent saw this as a sign that visits were detrimental to the child, and often suspected the visiting parent was behaving badly. The visiting parent, on the other hand, observing a happy and playful child during visits, thought visits were going well and was angry at the custodian for “making up trouble.” The evaluator could frequently help both parents see-sometimes by having them watch the child and other parent through a oneway mirror-that each was accurately describing his or her time with the child. If the parents could understand that, they were more open to hearing the evaluator’s discussion of why their child behaved as he did. They could then appreciate their child’s feelings about the parental separation and recognize that these feelings became more intense and overt after a visit. They could learn to understand the child’s behavior as reflecting the child’s conflicts, rather than as reflecting distortions and bad behavior of the other parent. The parents could then go on to agree to continued visitation, and were better able to assist their child with his feelings. Often, after the initial discussion with the evaluator, parents reported that their child was calmer following visitation.
Evaluation as Treatment Helping parents understand each other and their children, often done as part of an effort at mediation, has similarities to a parent guidance treatment intervention. While evaluators did not engage in formal
559
psychotherapy with clients, participants sometimes reached new insights as a consequence of putting their feelings into words and hearing the evaluator’s clarifications and interpretations about their statements. A number of parents, initially concerned that their children would find the evaluation a stressful experience, later reported their children to do better after talking with the evaluator. Some parents who could not reach agreement with each other nevertheless appeared accepting of a final adverse recommendation. Such parents often said they could understand how the evaluator saw the situation, or they were reassured knowing the evaluator thought the recommended outcome was best for their child. For these parents, the evaluator appeared to be a powerful, but benign figure with whom they could agree, thus obviating some of the difficulty they would have had in “giving in” to a spouse at whom they were furious. Others appeared to gain some relief simply by being listened to as they presented their case fully. Evaluators frequently provided information about normal child development and children’s responses to divorce which many parents found helpful. Some parents expressly requested such information. Discussing a child’s development was a useful way to help parents focus on their child’s best interest. Apart from utilizing such information, focusing on the child appeared helpful to many parents, preoccupied with their own needs and consumed in a heated dispute with their spouses, to gain some distance from the strife of the marital relationship.
Discussion Our findings regarding the role of psychiatric evaluation in contested custody and visitation cases suggest that viewing a custody evaluation as a mechanism for providing evidence to be formally considered by a fact finder is an overly narrow perspective. The courts appear to be motivated to promote out-of-court settlements, and utilize pretrial referral for a mental health evaluation as one type of alternative dispute resolution. In our sample, this alternative to trial was successful in 89%of cases. In this regard, the local courts are behaving in a manner consistent with an increasing trend to promote resolution of disputes without resorting to formal judicial decision making. Our specific results are, of course, limited by such uncontrolled factors as the particulars of Michigan statutes and court rules, the particular methods used for evaluation, the reputation and relationship of our program with courts and attorneys, and nonrandom sampling of contested custody cases. Nevertheless, our experience illustrates that psychiatric evaluations play a variety of functions in the process of dispute resolution over and above providing evidence to a judge. An
560
P. ASH AND M. GUYER
evaluator who functions as an appointee of the court exerts considerable influence which derives in large part from the shadow of judicial power which looms behind him. This model has implications for the conduct of a court-ordered evaluation. Recognizing the potential functions of an evaluation other than providing evidence for trial allows an evaluator to utilize his role to further the resolution of the dispute. The evaluator should remain open to the possibility of parental resolution and not take the referral as meaning the parents are unable to negotiate a solution. We suggest that the evaluator can properly take on the role of diagnosing the cause of the difficulty parties have in reaching their own agreement, and be open to expand his role from gathering evidence to facilitating an intrafamily resolution. Such an expanded approach may invite criticism on the grounds that the evaluator is taking on a role beyond that delegated to him by the court, by the attorneys, or by the parties themselves. Judges, attorneys, and the parties want cases settled, but may not be ready to acknowledge they are delegating anything more than an evaluating function to a mental health professional. Diagnosing the difficulty parties have in reaching an agreement is an appropriate part of the evaluative function. If agreement appears possible, then the issue of the evaluator’s change of role needs to be handled with care. If the evaluator decides that he will suspend his “evaluation as evidence for the court” approach while parental resolution goes forward, this should be made clear to the parties, the attorneys, and the court. All those involved with the case stand to gain if out-of-court resolution is achieved. The evaluator then needs to work out with the parties his role in the resolution process. This may vary from becoming a mediator who will resume an evaluation in the event mediation fails, to helping the parties think through an agreement which they then take to their attorneys for formal legal implementation, to explicit referral to a designated mediator where the work would be done confidentially with resumption of the evaluation in the event mediation breaks down. If this choice is left to the parties and their attorneys, they should have little objection to the route they choose. In the model of judicial functioning we describe, the courts prefer dispute resolution which is accomplished by the parties, and so typically have little objection to new attempts being made towards nonjudicial resolution. Does attending to the potential for parental resolution interfere with the process of evidence collection formally delegated to the evaluator by the court? Often parenting difficulties are highlighted by clarifying the
conflicts between parents which prevent them from reaching a resolution. Looking to the source of conflict also provides the evaluator with knowledge of the context in which the dispute arose. When resolution appears possible, there is a suspension of evidence collecting, but we suggest the cost of this delay is outweighedby the benefits which accrue if the parents can reach resolution. One problem that may develop, although in our sample was infrequent, is that the parties reach a resolution which is not, in the evaluator’s view, in the best interests of the children. Recall that the threat of Solomon’s sword promoted a proposed resolution between the two contesting women which Solomon did not accept. Different jurisdictions reach different results in such cases, depending on whether the applicable statutes and precedents favor the attainment of parental resolution or instead look to independent criteria which address the child’s best interests. The role of the evaluator is to place this determination before the court. The majority of our cases did not settle during the evaluation, and the evaluator’s written report became a bargaining chip in negotiations. Anticipating that the report will be used as a factor in parental negotiation, the evaluator can modify the way he prepares his report. First, by focusing on the best interests of the child, the evaluator may achieve a shift in the parents’ views from an adversarial “I want what’s mine” position to a more child-centered focus. Watson (1977) explicitly advocates this approach when he recommends meeting with attorneys at the conclusion of the evaluation in an attempt to persuade them to resolve the case along the lines of his recommendation. Second, we suggest the evaluator should set out his views regarding the children’s best interests in a manner which is persuasive. This requires presenting reasoning and data in addition to spelling out the evaluator’s recommendations. A persuasive report promotes out of court resolution primarily because it increases the predictability of a trial outcome. It is largely the parent (and his or her attorney) who stands to lose if the evaluator’s recommendation is implemented who determines whether a trial is worth the effort and expense. The evaluator should therefore take care to write a balanced report, citing parental strengths as well as weaknesses, to minimize alienating either of the parties. Later reports from parents suggested that parents who felt they had had a fair hearing in the evaluator’s office were less likely to proceed to trial than those who felt the evaluator was biased against them. Interpretive interviews with parents in which the evaluator discussed his findings with each parent and informed them as to what would be written also
EVALUATIONS I N CUSTODY CASES
appeared to help parents accept the evaluator’s conclusions. Third, the report may explicitly delineate areas in which bargaining can take place. For example, a report might emphasize those qualities and strengths which each parent offers the children, express regret that in the current climate of animosity the parents are unable to make their assets available to their children, and express the view that if that hostility could be resolved, then different recommendations would be appropriate. Giving parents an invitation to do what is best for their children, while acknowledging the pain involved in giving up some personal demands, is an invitation to a higher level of functioning which many parents find supportive. Evaluators often took comfort in the thought that a judge would make the final, difficult decision. In our sample, this hope was usually an illusion: the appointment of an evaluator by the court usually functioned as a delegation of fact-finding to the mental health expert. In such a situation, it is all the more important that an evaluator carefully assess the case, because he or she will in all likelihood be making a determination which will have a massive effect on the lives of the children and parents. Society and the law are increasingly cognizant of the limits of psychiatric prediction and are supporting and encouraging divorcing parents to make decisions regarding their children. An evaluator in a contested custody or visitation case is in a position in which he can promote that process.
References AMERICANPSYCHIATRIC ASSOCIATION(1982), Child Custody Consultation. Washington, D.C.: APA.
561
ASH, P. & GUYER,M. J. (1984), Court implementation of mental health professionals’ recommendations in contested child custody and visitation cases. Bull. Amer. Acad. Psychiat. Law, 12:137148. BAZELON, D. L. (1974), Psychiatrists and the adversary process. Sci. Amer., 230(6):18. BERKMAN, C . F. (1984), Psychodynamic and family issues in postdivorce child custody litigation, This Journnl, 23708-712. DERDEYN, A. P. (1975), Child custody consultation. Amer. J. Orthpsychiat., 45:791-801. -(1980), Divorce and children: clinical interventions with children and their parents. Psychiatr. Ann., 1O:l-29. DESPERT,J. (1953). Children of Divorce, citing a 1948 American Bar Association report. Garden City, N.J.: Doubleday, p. 189. DIAMOND, B. L. (1959), The fallacy of the impartial expert. Arch. Crim. Psychdyn., 3:221-235. FREED,D. J. & FOSTER,H. H. (1978), Divorce in the fifty states: an overview as of August 9, 1978. Family Law Reporter, August 2, 1978, 4(41):4033-4041. GARDNER, R. A. (1982), Family Evaluation in Child Custody Litigation. Cresskill, N.J.: Creative Therapeutics. J., FREUD,A. & SOLNIT, A. J. (19731, Beyond the Best GOLDSTEIN, Interests of the Child. New York Free Press. JOHNSTON, J., CAMPBELL, L. & TALL,M. (1985), Impasses to the resolution of custody and visitation disputes. Amer. J. Orthopsychiat., 55~112-129. MICHIGAN COMP. LAWS,ANN. $552.513(2), 1984. MNOOKIN, R. (1975), Child custody adjudication: judicial functions in the face of indeterminacy. Law Contemp. Prob., 39226-293. & KORNHAUSER, L. (1979), Bargaining in the shadow of the law: The case of divorce. Y& Law J., 88:950-997. MUSETTO,A. P. (1982), Dilemmas in Child Custody. Chicago: Nelson-Hall. OKPAKU,S. R. (1976), Psychology: impediment or aid in child custody cases? Rutgers Law Rev., 291117-1153. PEARSON, J. & THOENNES, N. (1984), Mediating and litigating custody disputes: a longitudinal evaluation. Fam. Law Quart., 17~497-524. WATSON, A. (1977), Child custody problems during divorce. Weekly Psychiatry Update Series, Lesson 2, Vol. 2.
-