Should the mental health evaluator decide child custody?

05/10/05

The current issue of Family Court Review addresses the controversy surrounding the role of the mental health evaluation in child custody cases, led by an article by Timothy Tippins and Jeffrey Wittmann which argues that the child's best interests are a legal and socio-moral construct, not a psychological one. Tippins and Wittmann write that psychologists have no valid, reliable methods for determining custody plans for children, yet often do. "There is no empirically supportable method or principle by which an evaluator can come to a conclusion with respect to best interests entirely by resorting to the knowledge base of the mental health profession," the authors assert. Their article proposes a model for what clinicians can ethically present in custody matters, carving the psychological evaluation process into four layers which work toward the core issue: the best interest of the child.

The authors contend that clinicians with adequate forensic training can provide matrimonial and family court judges with useful, admissible information primarily in the first two layers of their model: level I - what the clinician observes, and level II - what s/he concludes about the psychology of a parent, child, or family. At Level III, where the evaluator's inferences bear more directly on custody-relevant issues, the authors urge caution and firm anchoring to premises established as scientifically valid by the empirical research base of the psychology discipline. At Level IV, opinions as to what custody plan ultimately serves a given child's best interest are to be avoided under their model. The authors also offer other recommendations, including that judges preclude expert witnesses from addressing the ultimate custody plan. "The legal system has both the right and duty to exclude opinions that are not supported by good science," the authors state.

Not everyone agrees with these views, however. Throughout this issue of Family Court Review experts from diverse backgrounds--law professors, mental health experts, researchers, judges, and child custody evaluators in different practice settings and in different countries address the role of the neutral mental health evaluator in child custody disputes in all of its complexity and comment on the Tippins and Wittmann article. The Honorable Arline S. Rotman suggests that they do not go far enough in their call for reform. "Even if we were to adopt all eight of their recommendations, including barring level IV testimony on the ultimate issue, we would still be faced with the problem of custody decision-making based on inadequate and untested evidence," she begins. And Joan B. Kelly and Janet R. Johnston suggest another policy that would reserve forensic custody evaluations for "... serious allegations of child abuse, neglect, and molestation, as well as contested claims of parental psychopathology, substance abuse, or domestic violence, where standards for parental behavior in family court would be more on a par with those in dependency court."

This special symposium issue of Family Court Review focuses on the role of mental health evaluations in the child custody dispute resolution process. The rapid growth of these evaluations has led to problems well captured in the headline of a recent front page article in The New York Times on the subject-- For Arbiters in Custody Battles [meaning neutral mental health evaluators] Wide Power and Little Scrutiny. Other commentaries in this issue include: Thomas Grisso offering three reasons for the stalemate around the implementation of an empirically-based child custody evaluation practice; Justice Linda Dessau detailing the Australian experience where a child custody report writer is permitted to express an opinion on the ultimate issue; Mary Kay Kisthardt and Barbara Glesner Fines re-conceptualizing the role of the Custody Evaluator in "Making a Place at the Table"; and Janet R. Johnston, Soyoung Lee, Nancy W. Olesen, and Marjorie Gans Walter examining divorced families referred to child custody evaluation in "Allegations and Substantiations of Abuse in Custody Disputing Families."

For over four decades, Family Court Review has served as an interdisciplinary communication forum for judges, attorneys, mediators, and professionals in mental health and human services who are concerned with the improvement of all aspects of the family court system. It is the journal of the Association of Family and Conciliation Courts.

Source: Eurekalert & others

Last reviewed: By John M. Grohol, Psy.D. on 21 Feb 2009
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