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The Latency Child in a Custody Conflict
The Latency Child in a Custody Conflict Melvin Lewis, M.B., B.S., M.R.C.Psych., D.C.H.
For legal proceedings concerned with parent-child relationships, the law has accepted "the best interests of the child" as its guiding principle. In theory, though often not in practice, this principle is to take precedence over all other interests, including those of parents. Perhaps one of the reasons for giving less weight to "the best interests of the child" at times is the fact that this standard has eluded precise formulation. Indeed, a new standard has recently been proposed, formulated as "the least detrimental available alternative for safeguarding the child's growth and development" (Goldstein et aI., 1973, p. 53). The problems are complex. Even if the general requirements for optimal growth and development as well as the appropriate stagespecific stimuli could be clearly defined, other questions would immediately arise. For example, should custody decisions be based on current or future needs? If both kinds of needs cannot be met by one person, which needs should be given preference? Under these circumstances, should subsequent modification in custody be considered or should custody determinations be largely unmodifiable? Criteria for the needs of the child are clearest between the ages of 6 months and 5 to 6 years, particularly in the first 2 or 3 years. Here, the general and stage-specific needs coincide; continuity of care and affection is paramount and overriding. Yet, even here, once considerations move beyond continuity of physical care to psychological care, many questions arise. Certain qualities of care and affection may contain psychological discontinuities. When these reach a critical point, the child's development is endangered. This point is difficult to determine except in more extreme circumstances, but when it does come, the need to provide psychological continuity may override the principle of maintaining physical continuities. Dr. Lewis is Professor of Clinical Pediatrics and Psychiatry, Child Study Center, Yale University, New Haven, Connecticut. A modified version of this paper was presented at the 1970 Annual Meeting of the American Association of Psychiatric Servicesfor Children, Philadelphia, Penna. Reprints may be requestedfrom the author at 333 Cedar Street, New Haven, Connecticut 06510.
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The needs of the child during the period from approximately 6 years to 11 years are still more complex. Identification processes in general, and sexual identification in particular, are of special importance during this latency period; certain influences from both parents are necessary for optimum ego and superego development. Cognitive development requires specific environmental supports, as does the child's social development. Some additional factors must be anticipated when the latency child's future development into adolescence and adulthood is considered. The "natural history" of normal latency consists essentially of two important and parallel processes. On the one hand, the superego shifts from an initially strict, forbidding, and strongly guilt-arousing agent, particularly around the issue of masturbation, to a less strict, more "internalized," and integrated body of ideals and ethics, with moderate guilt feelings to buttress the defenses of the ego against the threat of unacceptable impulses (Bornstein, 1951). On the other hand, the ego itself shifts from valiant but erratic struggle with forbidden impulses (often manifest in ambivalent-type behavior) to a well-modulated system of defense mechanisms (including repression, various reaction formations, and an increasing ability to sublimate). These twin shifts are necessary to prepare the way for the mastery of future developmental tasks, and the extent to which the environment may facilitate or hamper these forward movements becomes an important factor in a custody conflict at this stage. Unfortunately, it is neither clear how well defined and vital certain environmental factors are, nor how critical this period of time is for the development of the functions just mentioned. This is in contrast to the previously mentioned important need for continuity of care and affection during the first few years when body-image formation, the capacity for object relations, and early cognitive schemata are in a critical stage of formation. The meaning of "critical" in this context also involves the concept of reversibility . Interruption and deprivation of continuity of care and affection during the first few years may cause irreversible harm, no matter what interventions are made (Spitz, 1945, 1946). However, after the age of 7 or 8 years, it is possible that the effects of trauma may be mitigated or even eradicated by appropriate concurrent (or later) interventions. The single factor of an interruption of continuity of care and affection during the early years allows one to make a long-term prediction: the child's future development in such important areas as object relations will be jeopardized. One cannot make such a prediction with the same con-
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fidence when the child suffers a stress after, say, the age of 7 years. From 7 years onward, many more variables must be considered as crucial. For example, some of the general but crucial variables that now affect one's ability to predict the future development of the child include the degree of pathology in the parents, the social and educational environment, and the amount of exposure to specific stresses that might be sexual or aggressive in nature. These considerations, of course, also affect the degree to which any decision or recommendations about custody should be based on past, current, or "future" data about the child and his environment. The list of such variables is long. Questions must also be raised about the significance of the variables with respect to their degree of severity and their predictive value concerning adverse consequences to growth and development. Moreover, who can best acquire, assess, and weigh such data must also be considered. In determining what factors need to be weighed, certain general factors require mention. For example, the dynamic concept of stages of development must be kept in mind. Apart from the specificity of needs at any given stage, the concept of stages is also significant in that the individual is more vulnerable at times of change from stage to stage than during more stable periods. Anna Freud (1969) put it well when she stated: "Experiences which at a later and more settled stage may be no more than unhappy, distressing or depressing, may well prove devastating at a time when libidinal and ego functions are on the point of unfolding, i.e., are at their most precarious" (p, 142). Another general factor is the individuality of a given child and his family. Mention has already been made of the intrapsychic developmental advances that are expected to occur during the normal latency period (e.g., ego and superego development, identifications, cognitive development). Further, some of the clusters of variables that may be expected to inAuence that development (e.g., parental pathology, social and educational environment, sexual and aggressive experiences) have been listed. However, each child and his environment also have special individual features. The neurotic child, the brain-damaged child, or the mentally retarded child has special needs. All the variables involved can perhaps be grouped into three categories of need which must be fulfilled in order to safeguard all or most of the best interests of the latency child: (1) the need for stimulation of intellectual, emotional, and social interests inside and outside the family; (2) the need for an environment that promotes increasing stability of ego and superego functions and avoids dam-
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age through poor impulse control and contradictory identifications; and (3) the need for appropriate disengagement from psychological dependence on the parents. It should be noted that none of these criteria, though expressing a scientific value orientation about optimal development, addresses itself to such specific values embraced by what is often called antisocial behavior. Given these latency developmental aims and pathways, certain characteristic conflicts can and do manifest themselves as a result of divorce, custodial disposition, and visitation arrangements during latency. For example, the child often experiences a sense of blame and guilt as a result of the divorce. Feelings of uncertainty, loss, and abandonment are also experienced. The child may have a sense of being "used" by his parents. Often, the child is angry and enraged at both parents. Sometimes the child retreats through regression, especially when he is burdened by ambivalence. Custodial disposition may lead to increased anxiety, and thus to increased demands on the ego. Superego deformities due to absence of one parent may occur (Neubauer, 1960). During visitation arrangements the wish to consolidate leads to a declining wish to visit. Moreover, since the continuing attitudes of parents may still affect the child, ego-strengthening and superego formation functions are jeopardized. The assessment of all the foregoing factors is a formidable task; it requires the exercise of expert clinical evaluation. But what is a child expert? In a general way, one can say that an expert is one who has the knowledge and skill to distinguish fact from fancy. He should have the capacity to make a balanced judgment and give weight to what is significant and important. Besides experience, he should have the wisdom to articulate his conclusions in a way that serves the best interests of the child. When we try to be more specific, however, we will probably find less agreement. Assuming, nevertheless, that such expert opinion is available, we must ask how can a judge evaluate such data, especially with the frequent additional presence of conflicting psychiatric testimony? This question may be further subdivided into three aspects: 1. What information and skills should a judge possess for these assessments? 2. What might be the indications for the special services of the expert clinician, and how should the expert clinician be employed? 3. How may the judge then determine the skills of the expert clinician and evaluate the data, especially with the frequent additional presence of conflicting testimony?
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What information and skills should a Judge possess for making assessments of the child and his environment?
Even when confronted with the testimony of an expert, the judge must in some sense be psychologically sophisticated (in the same way that one would like pediatricians to be aware of the psychological needs of the child). Indeed, the tasks of training the judge and the pediatrician in this regard are comparable. Much more thought has to be given to helping judges who deal with children become more knowledgeable about the basic sciences of child development (psychoanalysis, psychology, education, pediatrics), and about interviewing technique. To what extent and when the judge should do his own evaluation must then be considered. Surely, when the issues are complex, the services of an expert clinician are required. The function of the expert here is to clarify the issues for the judge. The expert clinician should never become the judge. The judge may sometimes wish to abdicate his responsibility in favor of the clinician; but he does so at a cost. What might be the indications for the special services of the expert clinician, and how should the expert clinician be employed?
The controversy about expert testimony has been much discussed in the literature in terms of "impartial" versus "adversary" experts (Katz, 1970). Kubie (1964) once stated that he would not testify in court unless appointed as the judge's expert. Diamond (1959) made the important point that he would favor impartial experts once "psychiatrists, through their own enlightenment and self-understanding, can be relied upon to detach themselves from their own prejudices and refrain from homogenizing their moral judgments with their medical opinions" (p. 235). The achievement of such a state of grace is well-nigh impossible. Under an impartial expert system, the dangers are great that judges will select experts who share their biases. They may then all too readily give uncritical weight to their own experts' opinion and pay less attention to contradictory expert testimony that may be presented by the parties involved (People v. Dickerson, 129 N .W. 199 201 [1910]). This problem is compounded because it is difficult to establish criteria for the selection of experts. Further, counsel may be reluctant to cross-examine an expert selected by the judge. Thus, in practice it would seem preferable for the expert not to be appointed by and render an opinion only to the judge. Instead, both parties and the judge should agree upon the selection of an expert whose judgment they all trust. Unfortunately, in
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any given field there are few "experts" whom everyone would trust. Moreover, the child mental health professional is usually expert only in his given field, and is not an authority in the field of moral values, social values , etc. Usually, he is trained in a particular school of thought and is dominated by the professional values of that school. Ultimately, there are limits to the knowledge now available and, of course, no expert is infallible. Sir Thomas Browne, the most renowned physician of his da y, testified affirmatively to the existence of witches (Cullender and Duny, 6 How. St. Tr. 687 [1665]). Perhaps instead there should be a panel of recognized experts in a given community. Members from this panel may then be called upon to give testimony in a child custody case. Of course, the judge, plaintiff, and defendant would always retain the right to employ whomever they wished. In any case, there are many pitfalls that await even the wary expert in child custody cases. First of all, the nature of adversary proceedings and the restrictions upon time are such that no man is immune to the stratagems of those who employ him (Guttmacher, 1960). Hence, in an adversary proceeding, the child expert is in danger of losing his scientific detachment. In any given case it would be a naive child psychiatrist who did not attempt to anticipate the possible impact of a particular judgment upon that child. It would be an exceedingly rare child psychiatrist who did not then slant his presentation toward the particular judgment he thought would be most advantageous for the child. Worse still , he may be unaware that this is his true motivation and would slant the evidence under the banner of the need for confidentiality or the "protection" of a particular individual. At all events, he would be doing the wrong thing (tampering with the evidence) for the right reason (the best interests of the child) (Morgan , 1943). Butin so doing, he loses his claim to scientific detachment. And this loss, once initiated, may be but the first step toward developing a generalized bia s that lies out of the reach of his observing, critical faculties. He then, in fact, becomes as capable of distortion as any other witness, expert or not, partial or impartial (Weihofen , 1956). The time available for the expert to do his work is often sharply limited by court schedules and financial costs. This is an additional handicap and can at times lead to conclusions that may not be justified, or that would have been quite different if drawn from a longer period of evaluation. Yet , unlimited tim e is not a solution. Besides increasing the financial drain , prolonged proceedings lead to delays in decisions which ma y at times act against the best inter-
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ests of the child. Thus, while the use of experts in a lengthy adversary process may elicit the "truth," at the same time the best interests of the child may not be well served. Perhaps some alternative method can be devised that would arrive at the truth without harming the child. In practice, a difficult judgment must be made about the optimum time and the optimum amount of data required to reach the best decision. Suppose one side refuses to cooperate, or agreement on the choice of an expert cannot be achieved? If the expert is not the choice of both parents, he could be selected by one of the parties with the understanding that the other party is at liberty to select his or her own experts if he or she so wishes. On many occasions, one of the parents in a custody dispute will be unwilling to undergo psychiatric examination. It may then be necessary to petition the court for an order that requires such an examination. But the court's involvement should not extend beyond this point; that is, such an order should not lead to the court deciding who that expert should be. If the judge does make such an appointment, that expert is viewed as the judge's expert in the dispute. When selected by one of the parties, it should nonetheless be clearly understood that the expert is an advocate for the child, and not for the party who selected him.' It is for this reason that it is also preferable for someone else to evaluate the parents. The psychiatrist's report may be distributed in a variety of ways. It may be sent directly to the judge with copies to both attorneys, or to both attorneys, or to the attorney whose parent-client appointed the expert. In the latter case, there would have to be an understanding that the report would be made available to the judge and to the attorney representing the other parent. Since both parties are aware that an expert opinion is being rendered, they would both have access to the report through the legal process, whether or not they initially agreed to having an expert evaluation. Thus, the report will be available to both parties and to the judge, and may be freely examined. Suppose the other parent does indeed appoint his or her own separate expert? This is far from being ideal, and there is some question as to whether it is ultimately in the best interests of the child. Yet, the legal systems and the parties are better served if all pertinent psychological data and opinions are presented to the court by means of expert testimony for either side. Theoretically, 1 The appointment of a separate attorney as a guardian ad litum is used in some states. This will require further experience before a useful evaluation can be made.
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any contradictions or confusions that may arise could then be creatively questioned. Ideally, the nature of any differences could either be resolved or at least understood, particularly by a sophisticated judge. Unfortunately, the adversary system sometimes exposes the judge to too many data, especially when he does not have the background to assess the information. A President's Commission (1967) noted that "a recent study of juvenile court judges . . . revealed that half had not received undergraduate degrees; a fifth had received no college education at all; a fifth were not members of the bar" (p. 7). Moreover, the prospect of an adversary proceeding further polarizes the parents, and often discourages the experts from appearing at all. How may the judge determine the skills of the expert clinician and evaluate the data?
Experience has shown that most good reports contain the following data: (1) a clear statement of the questions posed; (2) a description of the method of gathering data; (3) a narrative account of the raw data; (4) a discussion of the significant variables affecting the answers to each of the questions posed; and (5) specific answers to each question from the point of view of the best interests of the child. Such reports are also prepared within a reasonable period of time, and have proper regard for confidentiality. Reports to the various parties-child, parents, lawyers, judges-may have to be selectively modified in order both to protect the "well-being" of some one party to the dispute and still present a report that is meaningful. The modification must take into account who, if any, of the other parties might have access to the report. Ideally, the expert clinician simultaneously offers some help to the child in dealing with the custody process and the attending upset. ("A good diagnostic interview is also therapeutic.") It is important for the judge to know that the child psychiatrist obtains data from a variety of sources: e.g., the child, both parents, stepparents, if any, the school, psychological tests, and previous psychiatric and psychological evaluations. It is even more important for the judge to know that the data are at different levels of inference (Waelder, 1962). These data enable the child psychiatrist to construct a meta psychological profile (A. Freud, 1965), or its equivalent. It is on the basis of this kind of systematic assessment of the child and his environment that the child psychiatrist can begin to make meaningful recommendations. Lastly, such a systematic approach also reveals one's theoretical bias, thus allowing it to be challenged. There is, after all, no one
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expert opinion: there are the various opinions by many experts. The judge will still have to decide what makes most sense to him. PROBLEMS INHERENT IN ALL CUSTODY EVALUATIONS
Even the best report raises a number of questions: During the first session , what should any latency child be told about the purposes and implications of the interviews? If he knows that confidentiality is limited, it may well put him on guard ; is then the value of a study conducted "in his best interests" seriously compromised? If, on the other hand , he is told little, will he indeed later feel betrayed? Since the child psychiatrist can in any case glean a great deal about the child, even if the child did not want to convey the information, will the child feel invaded, betrayed, and defeated by his inability to hide his fears, anxieties, and wishes? These disturbing questions have led to others..The child psychiatrist considers himself the child's advocate. But the child does not come to the child psychiatrist of his own free will; he is brought by a parent. Did the child himself really want to see such a doctor? Should one let the child decide which information to communicate to others and which not; can the child make such decisions or can he be asked to ? If not, what is the child psychiatrist's obligation to include or delete what kinds of information ? What procedures could be devised so that information re vealed about the child and by the child will be least detrimental? The confidentiality problem faces every child psychiatrist who sees a child brought by the parents: the critical difference lies in the fact that in the legal situation the child psychiatrist has much less control over confidentiality. Moreover, these evaluations must have an impact on the child be yond the issue of confidentiality and authorship of decision . He is invited to reveal himself, to open up old and not-so-old wounds, and to participate in making choices about his ambivalent loyalties ; no child wants to be held responsible for the decisions that will be made. The child psychiatrist has the capacity to get beneath the surface; how far should he go for any given aspect of the child's welfare? The child psychiatrist has an obligation to protect the child from painful self-realizations, especially when they cannot be immediately followed up by therapeutic care. The child psychiatrist also has an obligation to avoid making the wrong recommendation because of missed significant data. Certainly, the doctor would want to conduct the diagnostic interview in a therapeutic manner. Perhaps he should insist on seeing the child again, once the cus-
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tody issue is resolved, in order to air some of these issues with the child. If so, would it be better if these follow-up visits were conducted by the evaluator, or by another child psychiatrist whose position has not been compromised by the prior encounter? If these concerns have merit, perhaps the traditional position of seeing all parties to the custody dispute, including the children, in such an evaluation should be reconsidered . Perhaps satisfactory recommendations can be made by seeing only the involved adults. This could be initiated by first doing complete evaluations of the adults, and only then determining what additional significant information might be obtained from interviewing the children. However, in some cases a crucial member of the family, perhaps the mother, may refuse to participate. Should an evaluation be started in the first place when the cooperation of all the parties is not yet obtained? I suggested earlier that if one party refuses, and the decision is made to proceed with the evaluation, the court might be petitioned to order the reluctant parent to see an evaluator. What if the court refuses to issue such an order? Perhaps it would be professionally more correct to decline to engage in the evaluation; alternatively, one could accept and carry the evaluation as far as possible under these circumstances. On balance, an incomplete evaluation may still better serve the best interests of the child than no evaluation at all. However, a child will surely know that one parent is not a party to the evaluation, and thus he might feel all the more that the child psychiatrist was the other parent's agent. This could consciously and unconsciously affect the data the interviewer obtains from the child. The child psychiatrist needs to consider this in his assessment of the data. THE PROBLEM OF CUSTODY REVISIONS
Custody disputes between postdivorce parents generally seek to effect some rearrangement in the custodial relationships. Do these disputes have a detrimental impact on the future development of the child? At present, the law provides for modification of custody whenever substantial evidence can be proffered that such modification is in the best interests of the child. "Substantial evidence" are crucial words because both the child's and the custodial parent's needs for stability would be threatened unless a good case for custodial reorganization could be made. However, it has been argued that any opportunity for reopening custody decisions will reinforce the fighting posture of divorced spouses and create feelings of
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divided loyalty and insecurity in the child: in the long run these will be detrimental to his psychological development. Therefore, it is argued that fidelity to "the best interests of the child" requires that custodial arrangements be unmodifiable, except under the most extreme circumstances, when the state would intervene in any case. After all, the state is reluctant to intervene in regular ongoing family relationships; why then should it be different in postdivorce situations? Perhaps the question needs to be turned around. Should society opt for state intervention whenever the development of the child is jeopardized by the care offered by the parents? Naturally, there would have to be safeguards, such as adequate criteria for such jeopardy, appropriate protection against the unnecessary intrusion of the state, and the availability of better alternatives. Viewed from the vantage point of the best interests of the child, some of the arguments against state "intervention" may be more protective of the interests of adults than children. In any case, the two situations can be distinguished. Whenever the state contemplates removal of a child from a nondivorced family setting, the decision involves separation from both parents, with the assumption that neither parent is suitable. However, in custody conflicts the child is transferred from one parent to another, with such a transfer from parent to parent being predicated on the assumption that a better home is available for the child in the home of one parent. Further, it has already been pointed out that beginning with latency, discontinuities based on physical removal of the child from one setting to another may not in itself be such a crucial factor as to preclude modification of custody. Indeed, clinical experience suggests that other important developmental needs of the child can be jeopardized by remaining with the custodial parent. Of course, the real danger in such changes is that the opportunity for modification will lead to exploitation of the child by the parents and to exploitation of the situation by children. Such events do need to be identified and appropriately handled. However, to single out this danger as a decisive reason for nonmodification overlooks the child's ties to both parents, the changing needs of the child for being with either parent, as well as the reality that at times the noncustodial parent can be the better choice to fulfill the developmental needs of the child. Moreover, unmodifiable award of total custody can just as readily lead to exploitation. Thus, where the child's ties to both parents should be safeguarded, the custodial parent could prevent the child from contacting the other parent.
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On reflection, therefore, the long-established legal doctrine that custody be modifiable does make sense psychologically. This does not suggest that modification be a readily available remedy, but only that it can be considered. Finally, the problem of custody decision in a latency child must be considered in its social context. The kind of careful evaluation suggested so far is very costly in terms of time and money. Who will pay for the evaluation of the needs of the poor child? The rate of divorce has increased from 2.611000 in 1950 to 2.8/1000 in 1968 (National Vital Statistics, 1970-72), and at least 60 percent of all divorces affect young children (Broel-Plateris, 1965). How will the courts deal with the increasing numbers of children of divorce? Then again, moral values change; who is to be the arbiter of what is in the best interests of the latency child socially and morally, let alone psychologically? Lastly, divorce is, of course, but one event (and often a drawnout one at that) in what has often been a prolonged period of disharmony. What steps, if any, can be taken to work with the child and the parents prior to custody proceedings? Perhaps the least we can do is to insure some follow-up care after the custody dispute has been settled in court, if not in the minds of the parties involved.
REFERENCES BORNSTEIN, B. (1951), On latency. The Psychoanalytic Study of the Child, 6:279-285. New York: International Universities Press. BROEl.-Pl.ATERIS, A. A. (1965), Divorce Statistics Analysis, United States, 1962 [Vital & Health Statistics, Series 21, No.7]. Washington, D.C.: U.S. Department of Health, Education, and Welfare. DIAMOND, B. L. (1959), The fallacy of the impartial expert. Arch. Crim. Psychodyn., 3:221-236. FREUD, A. (1965), A metapsychological profile of the child. In: Normality and Pathology in Childhood. New York: International Universities Press, pp. 138-147. - - (1969), Film review:John, seventeen months: nine days in a residential nursery. The Psychoanalytic Study of the Child, 24:138-143. New York: International Universities Press. GOLDSTEIN, J., FREUD, A., & SOLNIT, A. J. (1973), Beyond the Best Interests of the Child. New York: Free Press. GUTTMACHER, M. S. (1960), The Mind o] the Murderer. New York: Farrar, Straus, & Cudahy, p. 121. KATZ, J. (1970), The psychiatrist in court-expert or advocate? Unpublished manuscript. .I KUBIE, L. S. (1964), Provisions for the care of children of divorced parents: a new legal instrument. Yale Lawj., 73:1197-1200. MORGAN, E. M. (1943), Suggested remedy for obstructions to expert testimony by rules of evidence. Uniu. Chicago Law Reo., 10:285-297. NATIONAL VITAL STATISTICS DIVISION, PUBLIC HEALTH SERVICE (1970-72), Vital Statistics of the United States, 1968. Washington, D.C.: U. S. Department of Health, Education, and Welfare.
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N EUBAUER, P. B. (1960) , The one-p arent child and h is oedipa l development. Th e Psychoanalytic Study of the Child, 15:286-309. New York: International Un iversities Press. PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADM INISTRATION OF J USTICE" (1967) , Task Force R eport on J uvenile Delinquen cy and Youth Crime. Washington , D.C.: U .S. Government Printi ng Office. SPITZ, R. A. (1945), Hospitalism: a n inqu ir y into the genesis of p sycliia tri c co n d itions in early childhood. The Psychoanalytic Study of the Child, I :53- 74. Ne w Yo rk : I nternatio na l Universities Press. - - - (1946 ), H o sp italism : a follow-up report. The Psychoanalytic Study of the Child, 2: 113- 117. New York: International Universities Pr ess. WAELDER, R. (19 62), Re view of: Psychoanalysis, Scientific M ethod, and Philosophy. j. Am er. Psy-
choanal. Assn., 10:617-637 . WEIHOFEN, H . (1956), Th e Urge to Pu nish. New York: Farrar, Strau s, & Cuhad y, P: 107.
For legal proceedings concerned with parent-child relationships, the law has accepted "the best interests of the child" as its guiding principle. In theory, though often not in practice, this principle is to take precedence over all other interests, including those of parents. Perhaps one of the reasons for giving less weight to "the best interests of the child" at times is the fact that this standard has eluded precise formulation. Indeed, a new standard has recently been proposed, formulated as "the least detrimental available alternative for safeguarding the child's growth and development" (Goldstein et aI., 1973, p. 53). The problems are complex. Even if the general requirements for optimal growth and development as well as the appropriate stagespecific stimuli could be clearly defined, other questions would immediately arise. For example, should custody decisions be based on current or future needs? If both kinds of needs cannot be met by one person, which needs should be given preference? Under these circumstances, should subsequent modification in custody be considered or should custody determinations be largely unmodifiable? Criteria for the needs of the child are clearest between the ages of 6 months and 5 to 6 years, particularly in the first 2 or 3 years. Here, the general and stage-specific needs coincide; continuity of care and affection is paramount and overriding. Yet, even here, once considerations move beyond continuity of physical care to psychological care, many questions arise. Certain qualities of care and affection may contain psychological discontinuities. When these reach a critical point, the child's development is endangered. This point is difficult to determine except in more extreme circumstances, but when it does come, the need to provide psychological continuity may override the principle of maintaining physical continuities. Dr. Lewis is Professor of Clinical Pediatrics and Psychiatry, Child Study Center, Yale University, New Haven, Connecticut. A modified version of this paper was presented at the 1970 Annual Meeting of the American Association of Psychiatric Servicesfor Children, Philadelphia, Penna. Reprints may be requestedfrom the author at 333 Cedar Street, New Haven, Connecticut 06510.
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The needs of the child during the period from approximately 6 years to 11 years are still more complex. Identification processes in general, and sexual identification in particular, are of special importance during this latency period; certain influences from both parents are necessary for optimum ego and superego development. Cognitive development requires specific environmental supports, as does the child's social development. Some additional factors must be anticipated when the latency child's future development into adolescence and adulthood is considered. The "natural history" of normal latency consists essentially of two important and parallel processes. On the one hand, the superego shifts from an initially strict, forbidding, and strongly guilt-arousing agent, particularly around the issue of masturbation, to a less strict, more "internalized," and integrated body of ideals and ethics, with moderate guilt feelings to buttress the defenses of the ego against the threat of unacceptable impulses (Bornstein, 1951). On the other hand, the ego itself shifts from valiant but erratic struggle with forbidden impulses (often manifest in ambivalent-type behavior) to a well-modulated system of defense mechanisms (including repression, various reaction formations, and an increasing ability to sublimate). These twin shifts are necessary to prepare the way for the mastery of future developmental tasks, and the extent to which the environment may facilitate or hamper these forward movements becomes an important factor in a custody conflict at this stage. Unfortunately, it is neither clear how well defined and vital certain environmental factors are, nor how critical this period of time is for the development of the functions just mentioned. This is in contrast to the previously mentioned important need for continuity of care and affection during the first few years when body-image formation, the capacity for object relations, and early cognitive schemata are in a critical stage of formation. The meaning of "critical" in this context also involves the concept of reversibility . Interruption and deprivation of continuity of care and affection during the first few years may cause irreversible harm, no matter what interventions are made (Spitz, 1945, 1946). However, after the age of 7 or 8 years, it is possible that the effects of trauma may be mitigated or even eradicated by appropriate concurrent (or later) interventions. The single factor of an interruption of continuity of care and affection during the early years allows one to make a long-term prediction: the child's future development in such important areas as object relations will be jeopardized. One cannot make such a prediction with the same con-
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fidence when the child suffers a stress after, say, the age of 7 years. From 7 years onward, many more variables must be considered as crucial. For example, some of the general but crucial variables that now affect one's ability to predict the future development of the child include the degree of pathology in the parents, the social and educational environment, and the amount of exposure to specific stresses that might be sexual or aggressive in nature. These considerations, of course, also affect the degree to which any decision or recommendations about custody should be based on past, current, or "future" data about the child and his environment. The list of such variables is long. Questions must also be raised about the significance of the variables with respect to their degree of severity and their predictive value concerning adverse consequences to growth and development. Moreover, who can best acquire, assess, and weigh such data must also be considered. In determining what factors need to be weighed, certain general factors require mention. For example, the dynamic concept of stages of development must be kept in mind. Apart from the specificity of needs at any given stage, the concept of stages is also significant in that the individual is more vulnerable at times of change from stage to stage than during more stable periods. Anna Freud (1969) put it well when she stated: "Experiences which at a later and more settled stage may be no more than unhappy, distressing or depressing, may well prove devastating at a time when libidinal and ego functions are on the point of unfolding, i.e., are at their most precarious" (p, 142). Another general factor is the individuality of a given child and his family. Mention has already been made of the intrapsychic developmental advances that are expected to occur during the normal latency period (e.g., ego and superego development, identifications, cognitive development). Further, some of the clusters of variables that may be expected to inAuence that development (e.g., parental pathology, social and educational environment, sexual and aggressive experiences) have been listed. However, each child and his environment also have special individual features. The neurotic child, the brain-damaged child, or the mentally retarded child has special needs. All the variables involved can perhaps be grouped into three categories of need which must be fulfilled in order to safeguard all or most of the best interests of the latency child: (1) the need for stimulation of intellectual, emotional, and social interests inside and outside the family; (2) the need for an environment that promotes increasing stability of ego and superego functions and avoids dam-
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age through poor impulse control and contradictory identifications; and (3) the need for appropriate disengagement from psychological dependence on the parents. It should be noted that none of these criteria, though expressing a scientific value orientation about optimal development, addresses itself to such specific values embraced by what is often called antisocial behavior. Given these latency developmental aims and pathways, certain characteristic conflicts can and do manifest themselves as a result of divorce, custodial disposition, and visitation arrangements during latency. For example, the child often experiences a sense of blame and guilt as a result of the divorce. Feelings of uncertainty, loss, and abandonment are also experienced. The child may have a sense of being "used" by his parents. Often, the child is angry and enraged at both parents. Sometimes the child retreats through regression, especially when he is burdened by ambivalence. Custodial disposition may lead to increased anxiety, and thus to increased demands on the ego. Superego deformities due to absence of one parent may occur (Neubauer, 1960). During visitation arrangements the wish to consolidate leads to a declining wish to visit. Moreover, since the continuing attitudes of parents may still affect the child, ego-strengthening and superego formation functions are jeopardized. The assessment of all the foregoing factors is a formidable task; it requires the exercise of expert clinical evaluation. But what is a child expert? In a general way, one can say that an expert is one who has the knowledge and skill to distinguish fact from fancy. He should have the capacity to make a balanced judgment and give weight to what is significant and important. Besides experience, he should have the wisdom to articulate his conclusions in a way that serves the best interests of the child. When we try to be more specific, however, we will probably find less agreement. Assuming, nevertheless, that such expert opinion is available, we must ask how can a judge evaluate such data, especially with the frequent additional presence of conflicting psychiatric testimony? This question may be further subdivided into three aspects: 1. What information and skills should a judge possess for these assessments? 2. What might be the indications for the special services of the expert clinician, and how should the expert clinician be employed? 3. How may the judge then determine the skills of the expert clinician and evaluate the data, especially with the frequent additional presence of conflicting testimony?
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What information and skills should a Judge possess for making assessments of the child and his environment?
Even when confronted with the testimony of an expert, the judge must in some sense be psychologically sophisticated (in the same way that one would like pediatricians to be aware of the psychological needs of the child). Indeed, the tasks of training the judge and the pediatrician in this regard are comparable. Much more thought has to be given to helping judges who deal with children become more knowledgeable about the basic sciences of child development (psychoanalysis, psychology, education, pediatrics), and about interviewing technique. To what extent and when the judge should do his own evaluation must then be considered. Surely, when the issues are complex, the services of an expert clinician are required. The function of the expert here is to clarify the issues for the judge. The expert clinician should never become the judge. The judge may sometimes wish to abdicate his responsibility in favor of the clinician; but he does so at a cost. What might be the indications for the special services of the expert clinician, and how should the expert clinician be employed?
The controversy about expert testimony has been much discussed in the literature in terms of "impartial" versus "adversary" experts (Katz, 1970). Kubie (1964) once stated that he would not testify in court unless appointed as the judge's expert. Diamond (1959) made the important point that he would favor impartial experts once "psychiatrists, through their own enlightenment and self-understanding, can be relied upon to detach themselves from their own prejudices and refrain from homogenizing their moral judgments with their medical opinions" (p. 235). The achievement of such a state of grace is well-nigh impossible. Under an impartial expert system, the dangers are great that judges will select experts who share their biases. They may then all too readily give uncritical weight to their own experts' opinion and pay less attention to contradictory expert testimony that may be presented by the parties involved (People v. Dickerson, 129 N .W. 199 201 [1910]). This problem is compounded because it is difficult to establish criteria for the selection of experts. Further, counsel may be reluctant to cross-examine an expert selected by the judge. Thus, in practice it would seem preferable for the expert not to be appointed by and render an opinion only to the judge. Instead, both parties and the judge should agree upon the selection of an expert whose judgment they all trust. Unfortunately, in
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any given field there are few "experts" whom everyone would trust. Moreover, the child mental health professional is usually expert only in his given field, and is not an authority in the field of moral values, social values , etc. Usually, he is trained in a particular school of thought and is dominated by the professional values of that school. Ultimately, there are limits to the knowledge now available and, of course, no expert is infallible. Sir Thomas Browne, the most renowned physician of his da y, testified affirmatively to the existence of witches (Cullender and Duny, 6 How. St. Tr. 687 [1665]). Perhaps instead there should be a panel of recognized experts in a given community. Members from this panel may then be called upon to give testimony in a child custody case. Of course, the judge, plaintiff, and defendant would always retain the right to employ whomever they wished. In any case, there are many pitfalls that await even the wary expert in child custody cases. First of all, the nature of adversary proceedings and the restrictions upon time are such that no man is immune to the stratagems of those who employ him (Guttmacher, 1960). Hence, in an adversary proceeding, the child expert is in danger of losing his scientific detachment. In any given case it would be a naive child psychiatrist who did not attempt to anticipate the possible impact of a particular judgment upon that child. It would be an exceedingly rare child psychiatrist who did not then slant his presentation toward the particular judgment he thought would be most advantageous for the child. Worse still , he may be unaware that this is his true motivation and would slant the evidence under the banner of the need for confidentiality or the "protection" of a particular individual. At all events, he would be doing the wrong thing (tampering with the evidence) for the right reason (the best interests of the child) (Morgan , 1943). Butin so doing, he loses his claim to scientific detachment. And this loss, once initiated, may be but the first step toward developing a generalized bia s that lies out of the reach of his observing, critical faculties. He then, in fact, becomes as capable of distortion as any other witness, expert or not, partial or impartial (Weihofen , 1956). The time available for the expert to do his work is often sharply limited by court schedules and financial costs. This is an additional handicap and can at times lead to conclusions that may not be justified, or that would have been quite different if drawn from a longer period of evaluation. Yet , unlimited tim e is not a solution. Besides increasing the financial drain , prolonged proceedings lead to delays in decisions which ma y at times act against the best inter-
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ests of the child. Thus, while the use of experts in a lengthy adversary process may elicit the "truth," at the same time the best interests of the child may not be well served. Perhaps some alternative method can be devised that would arrive at the truth without harming the child. In practice, a difficult judgment must be made about the optimum time and the optimum amount of data required to reach the best decision. Suppose one side refuses to cooperate, or agreement on the choice of an expert cannot be achieved? If the expert is not the choice of both parents, he could be selected by one of the parties with the understanding that the other party is at liberty to select his or her own experts if he or she so wishes. On many occasions, one of the parents in a custody dispute will be unwilling to undergo psychiatric examination. It may then be necessary to petition the court for an order that requires such an examination. But the court's involvement should not extend beyond this point; that is, such an order should not lead to the court deciding who that expert should be. If the judge does make such an appointment, that expert is viewed as the judge's expert in the dispute. When selected by one of the parties, it should nonetheless be clearly understood that the expert is an advocate for the child, and not for the party who selected him.' It is for this reason that it is also preferable for someone else to evaluate the parents. The psychiatrist's report may be distributed in a variety of ways. It may be sent directly to the judge with copies to both attorneys, or to both attorneys, or to the attorney whose parent-client appointed the expert. In the latter case, there would have to be an understanding that the report would be made available to the judge and to the attorney representing the other parent. Since both parties are aware that an expert opinion is being rendered, they would both have access to the report through the legal process, whether or not they initially agreed to having an expert evaluation. Thus, the report will be available to both parties and to the judge, and may be freely examined. Suppose the other parent does indeed appoint his or her own separate expert? This is far from being ideal, and there is some question as to whether it is ultimately in the best interests of the child. Yet, the legal systems and the parties are better served if all pertinent psychological data and opinions are presented to the court by means of expert testimony for either side. Theoretically, 1 The appointment of a separate attorney as a guardian ad litum is used in some states. This will require further experience before a useful evaluation can be made.
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any contradictions or confusions that may arise could then be creatively questioned. Ideally, the nature of any differences could either be resolved or at least understood, particularly by a sophisticated judge. Unfortunately, the adversary system sometimes exposes the judge to too many data, especially when he does not have the background to assess the information. A President's Commission (1967) noted that "a recent study of juvenile court judges . . . revealed that half had not received undergraduate degrees; a fifth had received no college education at all; a fifth were not members of the bar" (p. 7). Moreover, the prospect of an adversary proceeding further polarizes the parents, and often discourages the experts from appearing at all. How may the judge determine the skills of the expert clinician and evaluate the data?
Experience has shown that most good reports contain the following data: (1) a clear statement of the questions posed; (2) a description of the method of gathering data; (3) a narrative account of the raw data; (4) a discussion of the significant variables affecting the answers to each of the questions posed; and (5) specific answers to each question from the point of view of the best interests of the child. Such reports are also prepared within a reasonable period of time, and have proper regard for confidentiality. Reports to the various parties-child, parents, lawyers, judges-may have to be selectively modified in order both to protect the "well-being" of some one party to the dispute and still present a report that is meaningful. The modification must take into account who, if any, of the other parties might have access to the report. Ideally, the expert clinician simultaneously offers some help to the child in dealing with the custody process and the attending upset. ("A good diagnostic interview is also therapeutic.") It is important for the judge to know that the child psychiatrist obtains data from a variety of sources: e.g., the child, both parents, stepparents, if any, the school, psychological tests, and previous psychiatric and psychological evaluations. It is even more important for the judge to know that the data are at different levels of inference (Waelder, 1962). These data enable the child psychiatrist to construct a meta psychological profile (A. Freud, 1965), or its equivalent. It is on the basis of this kind of systematic assessment of the child and his environment that the child psychiatrist can begin to make meaningful recommendations. Lastly, such a systematic approach also reveals one's theoretical bias, thus allowing it to be challenged. There is, after all, no one
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expert opinion: there are the various opinions by many experts. The judge will still have to decide what makes most sense to him. PROBLEMS INHERENT IN ALL CUSTODY EVALUATIONS
Even the best report raises a number of questions: During the first session , what should any latency child be told about the purposes and implications of the interviews? If he knows that confidentiality is limited, it may well put him on guard ; is then the value of a study conducted "in his best interests" seriously compromised? If, on the other hand , he is told little, will he indeed later feel betrayed? Since the child psychiatrist can in any case glean a great deal about the child, even if the child did not want to convey the information, will the child feel invaded, betrayed, and defeated by his inability to hide his fears, anxieties, and wishes? These disturbing questions have led to others..The child psychiatrist considers himself the child's advocate. But the child does not come to the child psychiatrist of his own free will; he is brought by a parent. Did the child himself really want to see such a doctor? Should one let the child decide which information to communicate to others and which not; can the child make such decisions or can he be asked to ? If not, what is the child psychiatrist's obligation to include or delete what kinds of information ? What procedures could be devised so that information re vealed about the child and by the child will be least detrimental? The confidentiality problem faces every child psychiatrist who sees a child brought by the parents: the critical difference lies in the fact that in the legal situation the child psychiatrist has much less control over confidentiality. Moreover, these evaluations must have an impact on the child be yond the issue of confidentiality and authorship of decision . He is invited to reveal himself, to open up old and not-so-old wounds, and to participate in making choices about his ambivalent loyalties ; no child wants to be held responsible for the decisions that will be made. The child psychiatrist has the capacity to get beneath the surface; how far should he go for any given aspect of the child's welfare? The child psychiatrist has an obligation to protect the child from painful self-realizations, especially when they cannot be immediately followed up by therapeutic care. The child psychiatrist also has an obligation to avoid making the wrong recommendation because of missed significant data. Certainly, the doctor would want to conduct the diagnostic interview in a therapeutic manner. Perhaps he should insist on seeing the child again, once the cus-
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tody issue is resolved, in order to air some of these issues with the child. If so, would it be better if these follow-up visits were conducted by the evaluator, or by another child psychiatrist whose position has not been compromised by the prior encounter? If these concerns have merit, perhaps the traditional position of seeing all parties to the custody dispute, including the children, in such an evaluation should be reconsidered . Perhaps satisfactory recommendations can be made by seeing only the involved adults. This could be initiated by first doing complete evaluations of the adults, and only then determining what additional significant information might be obtained from interviewing the children. However, in some cases a crucial member of the family, perhaps the mother, may refuse to participate. Should an evaluation be started in the first place when the cooperation of all the parties is not yet obtained? I suggested earlier that if one party refuses, and the decision is made to proceed with the evaluation, the court might be petitioned to order the reluctant parent to see an evaluator. What if the court refuses to issue such an order? Perhaps it would be professionally more correct to decline to engage in the evaluation; alternatively, one could accept and carry the evaluation as far as possible under these circumstances. On balance, an incomplete evaluation may still better serve the best interests of the child than no evaluation at all. However, a child will surely know that one parent is not a party to the evaluation, and thus he might feel all the more that the child psychiatrist was the other parent's agent. This could consciously and unconsciously affect the data the interviewer obtains from the child. The child psychiatrist needs to consider this in his assessment of the data. THE PROBLEM OF CUSTODY REVISIONS
Custody disputes between postdivorce parents generally seek to effect some rearrangement in the custodial relationships. Do these disputes have a detrimental impact on the future development of the child? At present, the law provides for modification of custody whenever substantial evidence can be proffered that such modification is in the best interests of the child. "Substantial evidence" are crucial words because both the child's and the custodial parent's needs for stability would be threatened unless a good case for custodial reorganization could be made. However, it has been argued that any opportunity for reopening custody decisions will reinforce the fighting posture of divorced spouses and create feelings of
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divided loyalty and insecurity in the child: in the long run these will be detrimental to his psychological development. Therefore, it is argued that fidelity to "the best interests of the child" requires that custodial arrangements be unmodifiable, except under the most extreme circumstances, when the state would intervene in any case. After all, the state is reluctant to intervene in regular ongoing family relationships; why then should it be different in postdivorce situations? Perhaps the question needs to be turned around. Should society opt for state intervention whenever the development of the child is jeopardized by the care offered by the parents? Naturally, there would have to be safeguards, such as adequate criteria for such jeopardy, appropriate protection against the unnecessary intrusion of the state, and the availability of better alternatives. Viewed from the vantage point of the best interests of the child, some of the arguments against state "intervention" may be more protective of the interests of adults than children. In any case, the two situations can be distinguished. Whenever the state contemplates removal of a child from a nondivorced family setting, the decision involves separation from both parents, with the assumption that neither parent is suitable. However, in custody conflicts the child is transferred from one parent to another, with such a transfer from parent to parent being predicated on the assumption that a better home is available for the child in the home of one parent. Further, it has already been pointed out that beginning with latency, discontinuities based on physical removal of the child from one setting to another may not in itself be such a crucial factor as to preclude modification of custody. Indeed, clinical experience suggests that other important developmental needs of the child can be jeopardized by remaining with the custodial parent. Of course, the real danger in such changes is that the opportunity for modification will lead to exploitation of the child by the parents and to exploitation of the situation by children. Such events do need to be identified and appropriately handled. However, to single out this danger as a decisive reason for nonmodification overlooks the child's ties to both parents, the changing needs of the child for being with either parent, as well as the reality that at times the noncustodial parent can be the better choice to fulfill the developmental needs of the child. Moreover, unmodifiable award of total custody can just as readily lead to exploitation. Thus, where the child's ties to both parents should be safeguarded, the custodial parent could prevent the child from contacting the other parent.
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On reflection, therefore, the long-established legal doctrine that custody be modifiable does make sense psychologically. This does not suggest that modification be a readily available remedy, but only that it can be considered. Finally, the problem of custody decision in a latency child must be considered in its social context. The kind of careful evaluation suggested so far is very costly in terms of time and money. Who will pay for the evaluation of the needs of the poor child? The rate of divorce has increased from 2.611000 in 1950 to 2.8/1000 in 1968 (National Vital Statistics, 1970-72), and at least 60 percent of all divorces affect young children (Broel-Plateris, 1965). How will the courts deal with the increasing numbers of children of divorce? Then again, moral values change; who is to be the arbiter of what is in the best interests of the latency child socially and morally, let alone psychologically? Lastly, divorce is, of course, but one event (and often a drawnout one at that) in what has often been a prolonged period of disharmony. What steps, if any, can be taken to work with the child and the parents prior to custody proceedings? Perhaps the least we can do is to insure some follow-up care after the custody dispute has been settled in court, if not in the minds of the parties involved.
REFERENCES BORNSTEIN, B. (1951), On latency. The Psychoanalytic Study of the Child, 6:279-285. New York: International Universities Press. BROEl.-Pl.ATERIS, A. A. (1965), Divorce Statistics Analysis, United States, 1962 [Vital & Health Statistics, Series 21, No.7]. Washington, D.C.: U.S. Department of Health, Education, and Welfare. DIAMOND, B. L. (1959), The fallacy of the impartial expert. Arch. Crim. Psychodyn., 3:221-236. FREUD, A. (1965), A metapsychological profile of the child. In: Normality and Pathology in Childhood. New York: International Universities Press, pp. 138-147. - - (1969), Film review:John, seventeen months: nine days in a residential nursery. The Psychoanalytic Study of the Child, 24:138-143. New York: International Universities Press. GOLDSTEIN, J., FREUD, A., & SOLNIT, A. J. (1973), Beyond the Best Interests of the Child. New York: Free Press. GUTTMACHER, M. S. (1960), The Mind o] the Murderer. New York: Farrar, Straus, & Cudahy, p. 121. KATZ, J. (1970), The psychiatrist in court-expert or advocate? Unpublished manuscript. .I KUBIE, L. S. (1964), Provisions for the care of children of divorced parents: a new legal instrument. Yale Lawj., 73:1197-1200. MORGAN, E. M. (1943), Suggested remedy for obstructions to expert testimony by rules of evidence. Uniu. Chicago Law Reo., 10:285-297. NATIONAL VITAL STATISTICS DIVISION, PUBLIC HEALTH SERVICE (1970-72), Vital Statistics of the United States, 1968. Washington, D.C.: U. S. Department of Health, Education, and Welfare.
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N EUBAUER, P. B. (1960) , The one-p arent child and h is oedipa l development. Th e Psychoanalytic Study of the Child, 15:286-309. New York: International Un iversities Press. PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADM INISTRATION OF J USTICE" (1967) , Task Force R eport on J uvenile Delinquen cy and Youth Crime. Washington , D.C.: U .S. Government Printi ng Office. SPITZ, R. A. (1945), Hospitalism: a n inqu ir y into the genesis of p sycliia tri c co n d itions in early childhood. The Psychoanalytic Study of the Child, I :53- 74. Ne w Yo rk : I nternatio na l Universities Press. - - - (1946 ), H o sp italism : a follow-up report. The Psychoanalytic Study of the Child, 2: 113- 117. New York: International Universities Pr ess. WAELDER, R. (19 62), Re view of: Psychoanalysis, Scientific M ethod, and Philosophy. j. Am er. Psy-
choanal. Assn., 10:617-637 . WEIHOFEN, H . (1956), Th e Urge to Pu nish. New York: Farrar, Strau s, & Cuhad y, P: 107.