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Divorce: The Care of the ChildrenBy Wendy Hutchins-Cook, Ph.D.Originally published in The Trowbridge Foundation Report, Vol. IV, Issue II, Spring 2003
HISTORICAL CONTEXT – THE STATUS OF CHILDRENIn the long-past history of Roman law (30 B.C. – 500 A.D.) children were considered the property of the husband (father) and with that came the presumption of paternal preference for the placement of children. The father had absolute power over the children and he was allowed to place them into slavery or sell them for profit. The mother had no legal rights in determining the care of the children (Gould, 1998). English common law, which comes into being with the establishment of the English monarchy system of government in about 700 – 800 A.D., also supported absolute paternal control. However, in English common law, fathers also had legal responsibility to protect, support and educate their children. Fathers had custodial rights based upon the presumption that paternal investment provided children with power, status and wealth. In the case of divorce, mothers had only restricted access to their children. In America the law for determining the care of children paralleled that of English common law from 1600 through the end of the 1800s, with a preference for paternal rights. By the early 1800s the United States diverted from English common law and paternal preference became less pervasive. Several states developed laws that granted both parents equal rights of custodial responsibility in the case of divorce. During the period of the Industrial Revolution—the mid 1800s—with fathers leaving their homes or even their home towns in search of factory work, mothers were remaining in the home and became the primary caretakers of their children. According to Gould (1998) this was the first time in the history of families in which responsibilities became clearly divided into roles of provider/wage-earner and child caretaker/nurturer. Cultural changes in the United States concerning family and workplace organization and the legal status of women resulted in a gradual replacement of paternal preference with a preference for maternal custodial care. Maternal preference was becoming the presumptive preference in the American courts by the 1920s. Strong support for maternal preference was in the making as Freud’s theories added even more support by placing more significance on the mother’s role as the primary and unique caretaker in a child’s life. THE TENDER YEARS DOCTRINEIn 1939 English common law converged with the laws of the United States law, making a fundamental shift away from the prior presumed paternal rights and responsibility. A British barrister proposed what came to be known as the Tender Years Doctrine in which the idea was advanced that children from birth to age seven years needed the care of their mothers. But at age seven years the custodial responsibility of the children would then revert back to the father. In Europe and the United States, the political and cultural factors surrounding the upheaval created by two world wars cannot be overlooked as an influence on policy and law as we proceed through the mid Twentieth Century (Gould, 1998). Eventually Bowlby (1969, 1980) added scientific backing to the importance of mother-infant attachment, and with this the belief in the significance of the father-infant relationship began to wane. Scientific credibility played a role in the evolution of maternal preference and the gathering strength for the legal standard of The Tender Years Doctrine. The demonstration that infants form meaningful attachments to both parents
by the age of six months or so has been gaining momentum for the past twenty-plus
years. In fact, the idea of simultaneous infant attachments as opposed to serial
attachments (first one, then the other) has been briefly reviewed by Warshak
(2000). Additionally, he has applied this attachment theory to a specific area
of parenting evaluations and recommendations regarding overnight stays with
both parents for children under one or two years of age. CURRENT CONTEXT: THE BEST INTERESTS OF THE CHILD STANDARDBy the 1960s and 1970s, neither father preference nor mother preference provided the clear guidance and dictates that they once did. And so, by 1971 the National Conference of Commissioners for Uniform State Laws developed a set of standards for divorce and the care of children that eventually became known as The Uniform Marriage and Divorce Act. This act presented a Best Interests of the Child Standard. No longer was the focus on paternal or maternal rights or preferences, but rather on the measure—or standard—of what was best for the child following their parents’ divorce. At about this same time, 1973, a book by Goldstein, Freud and Solnit, Beyond the Best Interests of the Child, sought “to pour content into the best interests standard” (or what they called the “least detrimental available alternative standard”). They brought forth the idea of the psychological parent. This was the parent who “on a continuous day-to-day basis, through interplay and mutuality, fulfills the child’s psychological need for a parent, as well as the child’s physical needs.” So we have the concept of the Best Interests of the Child, and we also have, among others, Goldstein, Freud and Solnit providing their conceptual picture of the parent who best supports the child’s needs. But there is no clear agreement about the factors or criteria that make up the concept of best interests. The criteria that have evolved have done so in a logical rather than in an empirical way. They have been drawn in part from theory, experience, intuition, culture, and preconceived notions about what is good for a child’s healthy development. As the legal definition of Best Interests of the Child developed, it included the notion that a child needs consistency in parenting, and that it is important to consider each parent’s relative contribution to child’s wellbeing. Further, it is important to consider as best for the child to have the parties or the court decide the custody question sooner rather than later. Then came yet another factor considered worthy of consideration. This was the child’s feelings and desires about who they wanted to live with. It was considered appropriate to include a child’s wishes if the child was of sufficient age to form an intelligent opinion. Then in 1979, the Uniform Marriage and Divorce Act identified five factors to be considered when making custody determinations:
The Uniform Marriage and Divorce Act of 1979 clarified that the parental behavior that should be considered in custody decisions was that which directly affected parenting. This was illuminated by specific reference to the situation of a parent with a mental condition. If the mental condition did not directly affect parenting skills or competence, it should not be considered in determining the child’s best interests (Weithorn, 1987). WASHINGTON STATE PARENTING ACT, 1987In Washington State, the Parenting Act of 1987, codified as RCW 26.09, specifies the objectives of a Parenting Plan:
The Washington State Parenting Act of 1987 specifies that the Permanent Parenting Plan provide for the child’s residential schedule, parental allocation of decision-making and parent process for dispute resolution. As for the residential schedule, RCW 26.09 directs that the court shall make residential provisions for each child which encourage each parent to maintain a loving, stable and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances. There is also reference to statutory limitations on a parent’s time with the child as a function of parental abandonment, abuse and domestic violence. The statute provides that the court shall consider the following criteria when making a decision about a child’s residential plan:
This not so unusual set of circumstances of a family scenario illustrates the challenges to the evaluator (and legal counsel) in applying the Washington State Parenting Act of 1987. A family presents itself for a parenting evaluation. The objective data includes a diagnosis of depression for the mother. Both parents acknowledge that from birth to four years of age the mother provided for most of the child’s care. Within the past two years, with no diagnosis or treatment, she was virtually incapacitated by depression, and the parents decided to rely upon childcare around the child’s preschool and kindergarten hours. The father adjusted his previously long work hours (he was self-employed) of 7:00 a.m. to 7:00 p.m. in order to provide the evening care for the child beginning at 5:00 p.m. Within the past six months, the mother was diagnosed and treated, and she was able to return to her previous level of child responsibilities. Within the last month she had another, although short-lived, bout of depression which the psychiatrist attributed to medication dosage. The medication appeared to have been stabilized by the time of the evaluation. The father is alleging that the mother is emotionally unstable and she has neglected the child emotionally and physically while she was depressed. The father proposed that he become the primary caretaker and that his wife be allowed to see the child only when she is feeling up to it. As the evaluator, you can see that the statutory criteria provide a focus for your work with this family. In thinking about the residential plan, through, the process of collecting information and the weight you ascribe for that information, will be what allows you to “weigh in” as you form your opinions and provide your recommendations to parents and their counsel. For example, there will be observations about the relative strength, nature and stability of the child’s relationship with his mother before, during and after the incapacitating bout of depression. A question to be asked is to what degree the child noticed or was affected by the depression given daycare arrangements, the presence of the dad, and the child’s age. Another question would be to what degree the dad was able to truly adjust his work schedule and become available to the child. These questions form the hypotheses about which the evaluator begins collecting data from many and varied sources. THE FORENSIC PARENTING EVALUATORGould, in his 1998 Conducting Scientifically Crafted Child Custody Evaluations, points out that, of the criteria factors which must be considered when evaluating a family, only some can be actually known as they consist of objective data, but other factors, such as relationship qualities, are not so easily reduced to data. As you can see, there is little in the way of empirical bases for what underlies the statutory parenting criteria. Evaluators are left to draw conclusions about the degree to which a factor actually affects parenting by their clinical knowledge and corroborating data, and by acknowledging limitations where they exist. As clinicians, in contrast to forensic evaluators, we operate from our acquired and intuitive skills and our substantive knowledge. We know how to form a clinical relationship, develop our clinical impressions, and follow through with clinical interventions. This is our home-field and we know our way around. As forensic evaluators on the other hand, we operate from our acquired and intuitive skills, and our substantive knowledge in a field that is not our home field. This is the legal field. It has its own rules, procedures, processes, language and expectations that are outside our primary area of knowledge. It is the lawyers’ and judges’ field and we evaluators have been asked to provide information and opinion that is both broad and deep regarding a substantive area of psychology. As evaluators, it is our job to perform this function within the rules, procedures, processes, language and expectations of the legal field. It is true that there are times when a clinician is asked to participate on the forensic field—usually as therapist to a party involved in litigation, or as therapist to a child of the parties. A word to the wise: Don’t be naïve, and do be prepared! A review of Dr. Greenberg and Dr. Schuman’s article (1997) entitled Irreconcilable Conflict Between Therapeutic and Forensic Roles will educate and prepare the clinician to provide testimony which is much more likely to be credible and effective. As the forensic evaluator operates in the legal field their ultimate goal is to provide information about a particular family in such a way as to assist the trier of fact in making their decision. A statement made by one of King County’s Superior Court judges, Judge Ramerman, provided a succinct directive, useful to forensic evaluators. His statement went something like this: the judge is charged with making a “reasoned decision” in any case that comes before him or her. They look to the expert witnesses—one of whom is the forensic evaluator—to provide them with reasons that they can make use of in formulating their decision. He goes on to say that the expert should state their opinion, then give the reasons, or key facts and data relied upon by the expert in forming their opinion. The judge will look to the expert to provide the connection between the data and their conclusions. I would add that the evaluators’ reasons for their impressions, opinions and recommendations, need to be strong, supportable, logical, trustworthy, relevant and reliable. Specifically, the Federal Rules of Evidence, which are applied in many state courts, are instructive and directive of the standard by which forensic evaluators’ methods and conclusions will be measured. As the scientific testimony of the expert witnesses is offered to the court, the judge is the gatekeeper of what expert testimony is heard. Among other criteria, the testimony must be, according to the judge, relevant, helpful and reliable. Of course there are limitations and challenges to the empirical basis (or the helpful and reliable aspect) for much of the forensic evaluator’s impressions, opinions and recommendations. Therefore, there are those who oppose the idea that there is any value at all to having psychologists offer “expert” opinion, and they present the argument that clinical opinion is insufficiently reliable or valid to warrant its use. Grisso (1988) has provided a framework within which to address such concerns and criticism. His concept is that a custody evaluation is an evaluation of parenting competency. What follows from this, he says, is that we have a framework for gathering data, generating inferences, making decisions, and developing recommendations. This also means that the forensic evaluator conducts their process in such a way that their methods and conclusions will be perceived as reliable and valid. As a reminder to the reader, Reliability is the extent to which a test or procedure will yield the same results either over time or with different observers. Validity is the degree to which a type of measurement is related to a construct or criterion (or the degree to which a test or other form of measurement actually measures or assesses what it is designed or touted to measure or assess). While there will be unique factors in each family, a standardized procedure will also provide the added benefit to the evaluator of a sense of commonality or baseline of behavior among families. The usual assessment or data gathering in parenting evaluations should include the following to the extent available:
In this process of assessment or data-gathering we employ several different methods to gain our baseline information. This repetitive multi-method approach adds support to the strength, logic, reliability and relevance of a forensic evaluator’s impressions, opinions and recommendations. This is the preferred and best methodology according to Grisso, to approach validity and reliability in a forensic context by using several different methods of data collection on a particular variable, and to then examine several variables looking for consistency of response. This is much the same way that legal counsel looks at different sources and types of evidence in order to support their legal theory. The forensic evaluator must be aware of the psychometric and empirical strengths and weaknesses of their tools, and acknowledge when they are opining about qualities, characteristics and types of interactions that are based in clinical knowledge and experience rather than empiricism. The forensic evaluator’s awareness is certain to be tested by legal counsel. THE EVALUATOR’S PATHWAY WITH EACH FAMILY – A BALANCE OF EFFORTS Everything we do as forensic psychologists in a case in which we are a participant
should serve the ultimate goal of educating the court about the data, the strengths
and limitations of the data, and our opinions. The destination of the evaluator’s
pathway is effectiveness and credibility. The product of the evaluator, which
should be effective and credible, may take the form of verbal feedback to parties
and counsel, a written report to be used in settlement discussions, or oral
testimony at deposition or trial.
As evaluators begin their work with a child and their family, they begin the interaction between the process and the data. First, there are the observations, or collection of data. This comes in the form of the collection of information through review of legal documents, school reports, daycare information, medical records, declarations, and interviewing collateral contacts. The data may also be collected from psychological or psychiatric evaluations, drug and alcohol assessments and treatment records, driving records, attendance records, etc. The evaluator’s observations also consist of their actual meetings and observations of the child and family in one or more locations; your office, their home, school, daycare, etc. To have balance at this step of the process means the evaluator receives documentation from both counsel or both parties. It means you comment in your report or testimony when you haven’t reviewed certain materials, or if there is any imbalance in the amount or kind of information you receive from either side. It means you give “equal time” to the two sides in terms of office and telephone time, home observations and collateral contacts. The next step in the pathway is an awareness of your hypotheses or impressions as they are forming. The questions you should be asking yourself include:
It is important to keep in mind the answers to these questions while you form your hypotheses. For the most part, the impressions are only as good as the data the evaluator has to support them. To be balanced at this step you should be aware that you have not simply settled on some other person’s data or formulation as your own. This is also the place in the process during which the evaluator entertains alternative hypotheses. The questions to now be asking yourself are what data supports the hypotheses, what alternative hypotheses could explain the data, and what data does not or cannot be accounted for in the hypotheses. This is also one of the times the evaluator reflects on their assumptions, blinders, cultural narrowness, etc. Consultation with other professionals will provide not only critical information and perspective, but confidence that any personal blinders have been effectively removed. Naïveté, at this point, is believing you know all of your own assumptions, biases and blind spots. By now, the evaluator is at the point where they are developing their rationale. The hypotheses have been accepted or rejected with the data lining up as supporting or not supporting the hypotheses. The data that cannot be reconciled should be explained. These are some of the questions that should be asked which allow the process for developing your rationale:
The balance at this step is achieved by being able to account for your impressions
with supportable data. Additionally, an evaluator must be prepared to discuss
any data that cannot be reconciled with their impressions. The last step is the formulation of your recommendations. This is where the evaluator offers their ideas about the actions to be taken by the parents, agencies, etc., in order to stop the damage, rectify the situation, and apply a remedy. The balance to be considered and acheived at this step is whether you are suggesting recommendations that apply equally to each parent, or if not, why not. The recommendations should conform to the statue in terms of addressing the three parts that make up a parenting plan:
It is usually the case that more, rather than less, specific recommendations will make the evaluator’s product—their report, their participation in settlement discussions, or testimony at deposition and/or trial—more effective. The recommendations are really a structured plan of action for the future. They typically include scheduling, times, locations for exchanges, a structure for scheduling holidays, special occasions, vacations and school breaks, supervision, fall-back plans for missed time, provisions for telephone calls, counseling for whom and with whom and how long, parenting classes, and allocation of what decisions and by whom. By the time an evaluator has worked with a particular family for anywhere between ten to fifteen hours, reviewed testing results and materials provided by counsel, and spent one to four hours on the telephone with collateral contacts, they will have a good idea about how “loose” or “tight” a set of recommendations should be in order to support the family—most particularly the child—in the future. THE FAMILY BEING EVALUATEDEach family and child comes with their own unique culture and values (ethnic as well as family-specific), familial, social, legal, educational and financial environment. As the parenting evaluator sits in the presence of their subject family, an important factor must be kept in mind: There is a wide range of appropriate and acceptable attitudes and behaviors expressed and demonstrated by intact families that do not come under the evaluator’s and court’s scrutiny as they do when a family participates in an evaluation. However, when divorcing, some of these same behaviors which were considered appropriate and acceptable while the parents were married are now presented as bad and wrong. The evaluator must maintain some perspective and balance in the assessment of this dynamic. To what degree does the evaluator consider a “within” family comparison (the historical acceptance of certain attitudes and behavior), and “between” family comparisons (should it or should it not have been an acceptable attitude or behavior at any time)? Primarily, what an evaluator must keep in mind is that they should be trying to provide the child with most of what’s best with each parent. A considerable amount of consternation for the evaluator comes from the fact that a divorcing family is in a disoriented and disorganized state, even though for some this state of family life might be preferable to what it was before. Clearly, our observation of the family is occurring at a time full of stress and change. Yet, our task is to determine what this family looked like before this period of upheaval and to determine the recommendations that we believe will be supportive of the child’s emotional and physical health given an entirely different family structure which is now being created. From a review of the statute criteria presented earlier, it is clear that most appear to be subjective as opposed to objective. The evaluator must determine what objective data there may be available that supports an opinion about the degree to which a criterion is present or not. For example, in forming a hypothesis about the strength, nature and stability of a child’s relationship with each parent, the evaluator will likely inquire, from several sources, about any disruptions, absences or impairment in the contact and care of the child. They will look to which parent provided what kinds of day-to-day care, including meals, scheduling, appointments, bedtime, dressing, school and recreational activities. The evaluator will solicit observations from neighbors, family, teachers, coaches, doctors, etc., about each parent and their child. Within just this single criterion the evaluator will look to all they know from research and clinical publications about “good parenting” and “bad parenting”. Good parenting includes making a determination about these qualities:
The qualities of good parenting are in contrast to deficient or “bad” parenting, which include the following:
The evaluator then does this exercise for the other criteria so as to be able to offer an opinion, formed as a result of the data, on any or all of the criteria. It is usually the case that for a particular family only some of the criteria factors are being challenged by one parent about the other. Some evaluators in their reports will address all criteria, even though not all are challenged. Others will only address the criteria that are challenged by the parents. Again, the big picture direction provided by Judge Ramerman is to provide the more compelling reasons (data) for an opinion about a particular criteria or parent challenge, and provide the explanation of the connection between the data and the conclusions. THE EVALUATOR’S REPORTEvaluators each have their own preferences about “delivery” of their report. Some meet with counsel, provide the report, and present their verbal summary to counsel. They may field some questions at this point and discuss their views of the parents and family situation in more detail. Other evaluators send out the report or participate in a counsel-requested telephone conference to clarify recommendations or to discuss whether the evaluator would be supportive of various settlement proposals. This may also be the time that counsel decides to consult with their own expert about the evaluator’s report. They may ask for a critical review of the evaluator’s process, and they may request the consultant help with cross-examination of the evaluator should a deposition or trial take place. Whatever the form of delivery or the use to which the report is put—verbal presentation to counsel or parties, consultation with other experts, the evaluator’s participation in settlement, deposition or trial, a most useful mindset—the one that is most likely to provide the court with input to their “reasoned” decision is that offered by Dr. Greenberg: “Be an advocate for the data; not for a party to the litigation.” Wise counsel and good advice. BibliographyBowlby, J. (1969). Attachment & Loss: Vol. 1. Attachment. New York: Basic Books. Bowlby, J. (1980). Attachment & Loss: Vol. 3. Loss, Stress & Depression. New York: Basic Books. Goldstein, J., Freud, A. & Solnit, A.J. (1973). Beyond the Best Interests of the Child. New York: The Free Press. Gould, J.W. (1998). Conducting Scientifically Crafted Child Custody Evaluations.
Thousand Oaks: Sage. Grisso, T. (1988). Competency to Stand Trial Evaluations: A Manual for Practice. Sarasota: Professional Resource Exchange. Kelly, J.B. (1994). The Determination of Child Custody. Children & Divorce, 4, 121-142. Schultz, B.M, Dixon, E.B., Lindenberger, J.C. & Ruther, N.J. (1989). Solomon’s Sword: A Practical Guide to Conducting Child Custody Evaluations. San Francisco: Jossey-Bass. Warshak, R. A. (2000). Blanket Restirctions: Overnight Contact Between Parents and Young Children. Family & Conciliation Courts Review, 38, 422-445. Weithorn, L.A. (Ed.) (1987). Psychology and Child Custody Determinations: Knowledge, Roles & Expertise. Lincoln: University of Nebraska Press.
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