Read an Excerpt

The Scientific Basis of Child Custody Decisions
Edited by: Robert M. Galatzer-Levy and Louis Kraus
ISBN: 0-471-17478-5

CHAPTER 1
Introduction

Divorce affects vast numbers of American children, more than one million annually, an estimated 40% before the age of 18 (Glick, 1988, 1990). Although experts disagree about the effects of divorce on children, research supports the commonsense view that for many children their parents' divorce presents a serious challenge. Professionals agree that, within the limits imposed by the decision to divorce and the resources available to the family, arrangements should be based on the child's best interest.
The problem is to determine those best interests both generally and for particular children. Some of these decisions involve values-convictions about what constitutes a good life and the aims of child rearing. These questions can only be addressed through ethical analysis and public opinion, as reflected in legislation and judicial decisions. In many areas, it is easy to reach consensus on these matters. Few would argue that irrational anxiety or development in the direction of criminality are good for children. In other areas, consensus is less clear because of the diverse views in our society. Thus, some people believe it is of great importance to raise children with a strong religious sensibility, whereas others count this of little importance or even regard it as undesirable. Although many values about children's development are so widely shared that they do not need to be spelled out, discussions of children's interests are implicitly embedded in a context of values and some questions about children's best interests can only be addressed from within that context.
Other questions deal with matters of fact. They concern how particular arrangements are likely to affect children, for example, whether a child of a given age and background will be able to maintain a close relationship to a parent under a particular visitation schedule. These instrumental questions are subject to empirical investigation. Few researchers have explored the question directly, but often a body of empirical information is available about children's development that allows strong inferences about the likely impact of an arrangement on a child. For example, it might be proposed that a one-year-old child spend alternating weeks in the care of each parent. Although it is unlikely that anyone has performed an experiment with precisely these parameters, extensive research on children's capacities to maintain relationships with caregivers and the effects on development of failing to do so strongly suggest that this would be a very undesirable arrangement in terms of the child's psychological health. Our hope is that reliable information about children's needs and development can increasingly be brought to bear on decisions about living arrangements for children of divorce.
This book is intended to serve the needs of legal and mental health professionals involved in custody decisions about children of divorce. These decisions should be informed by the best available knowledge regarding their likely impact on children. Although several authors have addressed the performance of custody evaluations and the providing of expert testimony about them (Ackerman, 1995; Ackerman & Kane, 1998; Bricklin, Elliot, & Halbert, 1995; Gardner, 1989; Schutz, Dixon, & Lindenberger, 1989; Stahl, 1994) and there are many scholarly works about child development generally, we could not find a single ready source for authoritative statements about making custody decisions that included discussions of the reliability of those statements.
Whenever a couple separates or divorces, decisions must be made about their children's custody and visitation. Although society recognizes its interest in these arrangements, involving the family immediately with the legal system, the divorcing couple reaches most of these decisions with no input from any professionals. Other couples seek the counsel of mental health professionals, pediatricians, attorneys, and clergy to work out an agreeable arrangement. In approximately 10% of divorces involving children, parents initiate litigation because they are unable to agree about custody and visitation arrangements. The subsequent process of discovery, mandated mediation, and evaluation has been estimated to resolve approximately 90% of these disputes. Thus, overall, only about 1% of custody decisions are the result of trials (Melton, Petrila, Poythress, & Slobogin, 1997). However, this figure is misleading about the impact of the courts on custody arrangements. The pattern of actual decisions that the courts and legislatures reach on custody matters has a profound effect on the agreements that parents reach between themselves (Mnookin & Kornhauser, 1979). For many years, the "tender years doctrine" was widely applied by courts. It presumed that young children were best cared for by their mothers. As this doctrine lost sway, largely through legislation, fathers who previously had little hope of gaining custody of their children increasingly sought custody or a major role in young children's lives. Thus, in addition to affecting custody arrangements that actually go to trial, judicial decisions have a far-reaching impact on the lives of many children of divorce. The ever-present potential for litigation ine vitably affects all actors in custody decisions so that the shadow of these cases is much longer than their numbers suggest.
The process for reaching custody decisions is unusual in that the individual most affected by the decision, the child, is rarely a party to the litigation. Additionally, custody-visitation arrangements are most often made as part of an overall divorce settlement so that, especially when the parties settle between themselves, considerations other than the child's best interests are likely to play an important role in the actual decision. For example, additional time with the child may be traded for increased financial support.
Mental health professionals who hope to contribute to custody arrangements must keep in mind both the intrinsic complexity of the issues involved and the context within which they will make their contribution. Because these decisions often require specific information about issues peculiar to divorce as well as the integration of multiple viewpoints, professionals need to do more than apply general child developmental and parenting principles. The divorcing family has distinct qualities, and its members are subject to forces that may not have been considered in investigations of broader developmental issues.
In addition to the particular problems associated with divorce, mental health professionals need to formulate and defend their views in a different fashion from that ordinarily used in their professional lives. The expert's job is to provide accurate information, and the function of the legal process is to assess the accuracy of that information. Recognition of these priorities affects every aspect of the mental health professional's work. Whereas in a therapeutic context, it is in the best interest of interviewees to provide information that is as accurate as possible, in a forensic context interviewees often have good reason to give inaccurate information. In a clinical setting, professionals properly provide information in a fashion that encourages the best clinical outcome; in a legal setting it is wrong to shape information to achieve a desirable goal. In a clinical setting, the credibility of a treatment provider's knowledge is rarely vigorously questioned, but mental health professionals engaged in forensic work should anticipate that their credibility will be carefully examined. Generally, mental health professionals need to be aware of the different world they enter when they become involved in forensic matters and to develop professional expertise in dealing with that world (Brodsky, 1991; Gutheil, 1998; Melton et al., 1997).
Mental health professionals commonly misunderstand the court's activities, believing that the judge's assignment is to do what is in a general sense best for the child. They often believe that the lawyers should also be working directly toward that end. Although judicial decisions hopefully correspond to doing what is best for the child, the judge's assignment remains, as it is in all matters, to apply the law to the particular case at hand. The attorney's responsibility is to vigorously represent the client's interest within the limits of the law. Through this adversarial process of litigation, the intention is to reach a decision based in law. Developed largely to resolve disputes about property and criminal behavior, even trials conducted with special rules based on the difficulty of custody decisions often appear to be poor tools for society to ensure children's welfare. Indeed, an actual trial occurs only when other, less rigid mechanisms for solving the problem have failed. When mental health professionals understand the legal process and appreciate the enormous difficulty of the court's work, they can participate in it more effectively.
Within this context, the judge gathers information pertinent to the issues before the court. It is here, as an expert witness, that the mental health professionals' input often enters into child custody decisions. Mental health professionals commonly misunderstand their own role and are tempted to exceed it. Most mental health professionals, primarily trained to treat psychological illness and accustomed to having their opinions taken as authoritative, need to "retool" to function well as experts for the courts. In particular, this means understanding that what they have to contribute is information about their particular expertise. Mental health professionals need to understand what role is being requested of them and then decide whether they can fill that role with professional integrity. Similarly, lawyers and judges need to understand and appreciate these limitations. Just as the appropriate role of legal professionals may be difficult for nonlawyers to understand, legal professionals need to realize that for mental health professionals to function well, they must remain within appropriate roles even when "common sense" might suggest that they could extend their activities. All too often, mental health professionals are pressed to opine on issues that they cannot adequately address.
Judges and lawyers frequently ask mental health professionals to predict the consequences of a particular course of action. Will a visitation schedule provide sufficient contact to maintain a relationship with a noncustodial parent? Will the child be better adjusted as a result of being in the custody of one parent rather than the other? If a parent assaulted a spouse, does that mean the parent is likely to assault a child? In almost all instances, mental health professionals who base their opinions on reliable knowledge can only answer such questions by describing the likelihood that some event will occur, and even then the specification of that likelihood may be imprecise. Experts can provide the court with the best information available but often information is limited. The need to reach a decision can make it difficult for experts, lawyers, and judges to exercise enough restraint to preserve the expert's useful function to the court-the provision of accurate information.
The quality of information provided by experts in custody disputes has been particularly open to question. Melton and colleagues (1997), in their widely acclaimed text on psychological evaluations for the courts, refer to the validity of expert opinions in these matters: "There is probably no forensic question on which overreaching by mental health professionals has been so common and so egregious" (p. 484). Among other concerns, they and others observe that the scientific basis of many custody evaluations is questionable (see also Grisso, 1990; Heilbrun, 1995). This difficulty arises in part because both the training of custody evaluators and the methods they employ vary widely (Ackerman & Ackerman, 1997; Keilin & Bloom, 1986; LaFortune & Carpenter, 1998). An even more serious source of concern, however, is the weakness of the scientific database used to make many recommendations.
In many contexts, courts have increasingly demanded that expert testimony live up to some reasonable standards. Confronted with ever-increasing amounts of "junk science"-studies of dubious merit generated for the purpose of litigation (Huber, 1993)-courts have tried to better address issues of how to assess information provided by experts. In the Daubert decision (see Myers & Erickson, Chapter 2) the United States Supreme Court initiated a process designed to improve expert testimony. In particular, the court aimed to reserve the term "scientific" for information that would widely be regarded as meeting the high standards commonly associated with that term. The criteria suggested by the court will strike many trained in scientific methodology as somewhat problematic, but its spirit will be welcomed by those who hope that science can inform judicial process. Perhaps as important as the ruling's details is the indication that courts will increasingly try to assess the scientific merit of testimony presented. Experts of all types are expected to meet improved standards for the opinions they provide.
The core of a scientific attitude was first formulated by Francis Bacon in 1620 (Bacon, 1620). Science is characterized by its continuing and open assessment of the validity of its own facts and theories. Unlike arguments from authority, whose validity is claimed because of the status of the person putting forward a position, scientific arguments are assessed by the credibility of claimed observations and quality of the logic that connects observations and conclusions. Insofar as the theory of relativity is regarded as true by physicists, it is because observations and logical deductions based on it support the theory, not because it was created by the greatest physicist of the age. Thus the unique quality of scientific statements is that they are always accompanied by an explicit or implicit assessment of their own credibility. It is in this sense that we use the term scientific in this book. Thus, we include as scientific not only material that is accompanied by the apparatus of quantitative investigation but also research using other methods, provided the consequences and limitations of those methods are clear. We have tried not only to present the best current thinking from the behavioral sciences on issues involving custody in divorce but also to investigate the credibility of these statements: What evidence lies behind them? Such information can allow courts (and others) to weigh information from mental health experts with increased accuracy.
Frequently, evidence that lacks reasonable scientific backing is presented to the courts as though it had scientific merit. Although corrupt individuals occasionally may act as "hired guns," testifying in favor of those who retain them for a price, a much more common and pernicious problem is the uncorrupt but inaccurate expert who presents pet theories and personal prejudices as scientific fact. In the emotionally charged arena of child custody decisions, personal needs or inadequate training may lead some individuals with professional credentials to believe and testify in a manner that is inconsistent with reasonable standards for scientific information. We hope this book will assist both legal and mental health professionals in raising the quality of expert testimony and weeding out testimony that goes beyond the expert's credible knowledge.
Because custody decisions often involve the interface of two strong professions with distinctive outlooks that are difficult to integrate, clarifying the mental health professional's role in the legal process helps all involved to work more effectively toward good solutions for children. Chapter 2, by John E. B. Myers and Richard Erickson, provides an overview of the legal and ethical issues involving experts in custody litigation. Some of these issues, such as the courts' expectations regarding the scientific status of expert testimony and the protections afforded experts are rapidly evolving. Others may run contrary to the common assumptions of both mental health professionals and attorneys. In any case, a working knowledge of these issues helps all involved function more effectively.
We begin the book with a discussion of general issues important in custody evaluations. Chapter 3 addresses conceptualizing the scientifically based custody evaluation. In it, Robert Galatzer-Levy and Eric Ostrov describe how information from the behavioral sciences can be usefully brought to bear on custody issues by assessing its credibility and relevance to the case at hand. They point to the strengths and weaknesses of this kind of information and the tools available for accessing scientific information provided in custody decisions.
Discussions of custody arrangements usually involve theories about the relationship of children's well-being to their interactions with caretakers. These theories tend to either remain implicit or enter the discussions as authoritative, unquestioned statements. For these discussions to be rational, we need to be explicit about the theories and their credibility. Attachment theory, which originated in a combination of observational studies and psychoanalytic conceptualization, is emerging as among the most theoretically clear and empirically based means of thinking about the relationship of children and caretakers, as well as the impact of these relationships on development. In Chapter 4, Louis Krauss describes the major findings of attachment research and applies them to issues of custody and visitation.
Rational decisions about custody and visitation can only arise from an understanding of the impact of divorce, as discussed in Chapter 5. Based largely on an empirical longitudinal study of divorce, Judith S. Wallerstein and Shauna B. Corbin describe the impact of divorce on children and families. They show that regular patterns of adjustment emerge in divorcing families. Especially when examined in some depth, many children are significantly affected by divorce in predictable ways. In making custody decisions, these effects need to be carefully considered. Additionally, they show that families often go through regular stages in the process of divorce. When considering custody and visitation arrangements, professionals need to keep this process in mind because it is easy to mistake steps in the process for stable adjustments. In a later chapter (Chapter 6) addressing the impact of divorce, John Grych and Frank Fincham adopt a different emphasis, focusing more on the findings of quantitative research and its implication for assisting children of divorce. They describe how the findings of systematic empirical investigation point to the need to match intervention with the specific needs of children and what is known about the effectiveness of current intervention.
In making custody and visitation arrangements, decision makers work within a legal context and on multiple sources of information. One source of information is psychological testing, the subject of Chapter 7, by Barry Bricklin. Starting at the beginning of the 20th century, psychologists developed a vast collection of tools designed to systematically, reliably, and validly assess almost every aspect of psychological function (Groth-Marnat, 1997). Although many of these tests are fine tools for their intended purposes, extending their application beyond those purposes is often problematic. The relevance of their results to questions for which they were not designed is, at best, in need of clarification. At the same time, the complex issues relevant to custody and visitation could benefit greatly from reliable measures of significant qualities of the parent-child relationship. Bricklin outlines the fundamental ideas of psychological testing, the issues involved in using tests not originally designed for custody assessment in these evaluations, and the available tests specific to this purpose.
A very different source of information is the child's own statements, especially when the child is called on to testify. How reliable are the child's statements? How much are they influenced by the pressures the child is under? Are there means to facilitate the child's providing the most accurate information possible? In Chapter 8, on the child as witness, Margaret Bull Kovera and Bradley D. McAuliff explore these controversial issues with a particular eye to the question of helping the child give useful information.
We have devoted three chapters to an overview of child development as it relates to custody and visitation. For these chapters, the authors have not attempted exhaustive reviews of the literature on development, an undertaking that would require dozens of volumes the size of this one to encompass the massive findings of recent decades. Instead, we provide an overview, an entree into the literature, a discussion of how developmental concepts apply to custody and divorce, and an examination of particularly controversial issues during various developmental stages. At one time, infants were automatically assumed to need to reside with their mothers. Developmental theory went hand-in-hand in an increased societal appreciation that it is the functions the mother provides, not her person, that the child needs, so that issues of custody and visitation must be reframed in terms of the child's psychological needs. Linda C. Mayes and Adriana Molitor-Siegl (Chapter 9) describe contemporary developmental research about the manifestation of these needs in divorce situations and what is understood about the impact of various arrangements on the infant and young child.
Continuing in the same vein in Chapter 10, Bennett Levanthal, Joshua Kellman, Robert Galatzer-Levy, and Louis Kraus examine the development of young and school-age children emphasizing the several lines of development a child must traverse during this period. They emphasize how custody and visitation arrangements can facilitate or impede these developments.
Often adolescents are believed to be sufficiently mature to decide for themselves where they will live, and courts sometimes simply defer to their preferences. Yet, despite physical appearance and a wish to be mature enough to make such decisions, adolescents may lack the capacity to judge what is in their own best interest, especially in the emotionally charged context of divorce. In Chapter 11, which describes adolescent development, emphasizing some common myths about adolescents, Alan Ravitz describes the developmental needs of these young people, means for assessing their situation, and information about custody and visitation arrangements that facilitate their development.
Many custody arrangements must take into consideration special needs of particular children or potentially problematic aspects of parental function. The third section of this book is devoted to these issues. Very often, custody and visitation involves not only the parent but also the new family of which the parent has become a part through remarriage. In Chapter 12, Jay Lebow, Froma Walsh, and John Rolland describe the dynamics of the stepfamily and the child's relationship to it. Since custody arrangements should reflect the child's overall well-being, the child's engagement in the new family structure needs to be carefully considered. Another family configuration that changes the impact of divorce on children is adoption. Consideration of the adopted child's special vulnerability to loss and separation leads Susan Fisher (Chapter 13) to assert that, in making custody and visitation arrangements involving adopted children, special care should be taken to maintain the child's sense of security.
Another group of children for whom custody arrangements can be particularly difficult are youngsters with significant medical problems. A parent's realistic and imagined worries about the other parent's ability to care for the child, psychological needs of ill children, and rare but important problems of factitious illness all complicate custody decisions when children are medically ill. In Chapter 14, Brenda Bursch and Lisa Vitti explore these important problems.
In custody disputes, aspects of parental personality are commonly discussed, often without clearly identifying their significance relative to the parent's ability to rear a child. When the parent has qualities that may be problematic or simply socially frowned on, these qualities are often treated as though they were significant to custody decisions. Two groups who are often presumed to be inadequate parents are people suffering from severe psychiatric disturbances and homosexuals. The first step in addressing custody issues involving such parents is to focus on the impact of their conditions on parenting. Michael J. Jenuwine and Bertram J. Cohler show that the simple equation of severe psychiatric disorder with impaired parenting is wrong (Chapter 15). They demonstrate that different disorders affect parenting in different ways and that the presence of a severe psychiatric diagnosis, in itself, should not determine a child's custody. They also explore how parents whose illnesses do interfere with parenting may be involved with their children in a way that is most useful to the child. Homosexuality remains so controversial in our country that people with various attitudes toward it not uncommonly find different attitudes incomprehensible. It is precisely in such an emotionally charged context that empirical data may be most helpful in reaching rational decisions about the best interest of children of gay and lesbian parents. In Chapter 16, on gay and lesbian parents, Amity Pierce Buxton carefully reviews the available literature on the impact of parental sexual orientation on children to provide a clear picture of whether this factor should weigh in custody decisions.
When sexual abuse is alleged during custody disputes, the professionals involved are often confronted by an enormous problem. Failure to protect the child from abuse is unacceptable, but taking these steps when the allegations are false-especially when they are created for purposes of litigation-is likely to be seriously damaging to the child. Matters are even more troublesome because of the intense debate that accompanies a swinging pendulum of attitudes toward alleged sexual abuse of children. In Chapter 17, Jade McGleughlin, Susanne Meyer, and John Baker describe empirical research about these allegations and their assessment.
An ideal solution to the custody problem would be for children to continue to benefit fully from both parents and for parents to feel fairly treated in that they equally share their time and relationship with the child. The wide range of arrangements referred to as "joint custody" are intended to approximate this ideal. However, such arrangements are not a panacea. When parents cannot cooperate or, worse, enter into conflicts involving the child, joint custody can introduce great difficulties into the child's life. When attempts to be fair to the parents take precedence, the child, like the infant in the Solomon legend, may be sacrificed to achieve parental equity. For these reasons, it is important to differentiate those situations in which joint custody is likely to provide well for the child from those in which the child is likely to be hurt by it. In Chapter 18, Marsha Kline Pruett and Christa Santangelo draw on a wide range of studies to describe empirical research that has helped identify situations where joint custody works and where it fails.
High-conflict divorces can absorb the lives of parents and children for years with devastating consequences for all involved. Often, legal interventions designed to resolve the conflict seem only to intensify it. Effective means to end the Armageddon of these divorces require an understanding of their underlying dynamics. In Chapter 19, David Doolittle and Robin Deutsch describe the manifestations, psychological basis, and appropriate intervention in these most problematic of divorce cases.
Our book lacks some chapters we wish we could have included. Many observers believe that parents' chronic maladaptive psychological functions, often referred to as personality disorders, have particularly important effects on child development. We wanted to address this question but found that it has only been scantily studied using empirical methods. A much more extensive literature addresses the impact of parental substance abuse on children, but we failed to find an appropriate contributor to review this literature. Another area we would have liked to explore is the impact of the community in providing support for children's development (Bryant, 1985). We hope to remedy these limitations in a later edition.
This book is intended to help legal and mental health professionals come to the best possible decisions in assessing children's best interests. The ever growing empirical knowledge of child development and the impact of various arrangements on children can greatly improve these assessments. It is in the nature of scientific investigation that findings will change as more work is done and criticism will refine existing information. We hope that this book will move that process forward.