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AACAP: Practice Parameters for Child Custody Evaluation

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AACAP: Practice Parameters for Child Custody Evaluation AACAP OFFICIAL ACTION Practice Parameters for Child Custody Evaluation ABSTRACT These practice parameters are presented as a guide for clinicians evaluating the often delicate and complex issues surrounding a child custody dispute. The historical basis of child custody and the various judicial presumptions that have guided courts are reviewed. The differences between performing child custody evaluation and engaging in traditional clinical practice are emphasized. Issues that are common to all child custody disputes are presented, including continuity and quality of attachments, preference, parental alienation, special needs of children, education, gender issues, sibling relationships, parents' physical and mental health, parents' work schedules, parents' finances, styles of parenting and dis­ cipline, conflict resolution, social support systems, cultural and ethnic issues, ethics and values, and religion. In addition, special issues that complicate custody evaluations are discussed, including infants in custody disputes, homosexual parents, grandparents' rights, parental kidnaping, relocation problems, allegations of sexual abuse, and advances in reproductive technology, such as frozen embryos, oocyte donation, and artificial insemination. An outline is provided that describes the complete evaluation process, from assessing referrals and planning a strategy through conducting clinical interviews, writing the report, and testifying in court. J. Am. Acad. Child Ado/esc. Psychiatry. 1997, 36(10 Supple­ ment):575-68S. Key Words: child custody, forensic psychiatry, joint custody, court, parenting, practice parameters, guidelines. Because evaluating the needs of children and adolescents in Although these parameters are not meant to be followed child custody disputes is complicated and requires specialized exactly, they contain principles that should be followed when knowledge and techniques, practice parameters can be helpful performing child custody evaluations, which are often com­ to clinicians and, ultimately, the families they evaluate.These plicated. parameters take into account that well-meaning, ethical, and competent clinicians may approach this work in different LITERATURE REVIEW ways. However, certain methodologies and clinical and Mtdlint searcheswere conducted in 1993 and 1996 for the ethical boundaries have emerged over time and are presented term "child custody" in the titles of articles. Therefore, only in these parameters. The recommendations in these papers primarily concerned with child custody have been parameters are basic principles that should be considered by cited. clinicians who perform custody evaluations and consult with judges and attorneys. Just as competent clinicians may vary in Historical Development their approaches to evaluation, diagnosis, and treatment, qualified forensic evaluators may differ in their methods. Approximately one in fWO marriages in the United States ends in divorce, affecting about 1,000,000 children per year. Approximately 10% of divorces involve custody litigation. Theseparamnm ioer« tkv~lop~d by Suphm P. Herman, M.D. principal Thousands of children, therefore, are at the center of often author, and tb« WOrk Group'on Quality Issues: John E. Dunne, M.D.• Chair, and William Aym. M.D.•form" Chair; Vatm~ Arnold. M.D.• Elissa Bm~tkk. protracted legal battles. M.D.• R. Scott Benson, M.D.• William Bernet,M.D.• GaiiA. Bernstein, M.D.• A number of authors stress the importance of understand­ Etta Bryant. M.D.• Oscar Bulrstnn. M.D.• Richard L. Gross. M.D.• Robert ing the historical basis of the custody dispute (Derdeyn, King. M.D.•Joan Kinlan, M.D.• Henrietta L~onard, M.D.• William Licamele, 1976) and evaluating the clinician's role of undertaking a M.D.• Jon McCk/lan. M.D.• and Kaili« Shaw. M.D. The authon thank L~~ comprehensive evaluation, rendering a readable, helpful Haller. M.D .• and Diane Sch~tlty. M.D.•for their thoughtful reoieu: AACAP Staff L. Elizab~th Sloan. L.P.G.. and Christine M. Miles. A draft oftbes« report, and, if necessary, testifying in court. Haller (1981) parameten wasdistribuud to th~ AACAP m=bmhipfor commentsat tb« 1996 stresses the importance of preparing a strategy for the eval­ Annual Muting. These param~tm uer« approv~d by th~ AACAP Council on uation and warns against evaluations that assess or support Jun~ 6, 1997. They a" eoailabl«to AACAP member:on th« WOrld Witk ~b only one parry to the dispute. Benedek and Benedek (1980) (www.aacap.org). discuss the role of the expert and the importance of clinician Reprinr "q~sts to AAOtP, Communications Department; 3615 Wisconsin education in the specifics of child custody evaluation. Av~. N w.. Washington. DC20016. 0890-8567/97/3610-0057SI$O.300/0~1997 by the American Academy Benedek and Schetky (1985) discusschild custody assessment of Child and Adolescent Psychiatry. and the "best interests" presumption. Weithorn (1987) ]. AM. ACAD. CHILD ADOLESC. PSYCHIATRY, 36: 10 SUPPLEMENT, OCTOBER 1997 575 AACAP PRACTICE PARAMETERS provides a comprehensive legal context for the clinician and cidated the importance of childhood experiences, the courts Ackerman (1994) provides a guide for psychologists that became increasingly concerned with protecting family includes pertinent information for child and adolescent psy­ members. Courts in Great Britain and the United States chiatrists and other clinicians. Nurcombe and Partlett (1994) became more involved in family disputes, especially when provide an excellent overviewof child custody and the role of children were at risk (Weithorn, 1987). In short, family law as the clinician. In a section on ethical issues, they stress the it is practiced today is a relatively recent phenomenon importance of the evaluator functioning as an expert and not (Derdeyn, 1976). as an advocate or adversary. Judges have used different conceptual models over the During the 1970s, joint custody, in which both parents are years in their decisions regarding children in custody dis­ granted equal rights to and responsibility for their children, putes. Kelly (1994) describes the history of how parents and was touted as almost a panacea for the negative impact of courts have made decisions regarding custody and access. divorce on children. Many saw this arrangement as a way to Recognizing the findings from psychoanalysis on the avoid protracted litigation and its presumed deleterious importance of the mother-infant relationship, the courts effects on families. Steinman et al. (1985) describe factors adopted the "tender years" doctrine, which held that in that might predict which joint custody arrangements succeed deciding a custody dispute, courts should assume that young and which fail. Although their statistics (one third of joint children need to be with their mothers. custody families live successfully, one third have difficulties, Although the tender years presumption was not uniformly and one third fail) may not be accurate, her observations defined, judges across the country, in their custody decisions, make sense: joint custody arrangements can work reasonably spoke of the special relationship between a child and his or well if the divorced parents are psychologically healthy, able her mother. Except in extreme cases of maternal unfitness, to set aside their anger, frustration, and disappointment with courts generally awarded custody of young children to the each other, and willing to tolerate each other's style of mother. In cases with children older than 7 years of age, parenting. Atwell et al. (1984) review the psychological and however, fathers often sought and gained custody. interpersonal effects of joint custody on children, and The tender years presumption predominated well into the Tibbits-Kleber et al. (1987) discuss the history and legislative 20th century, and many would argue that judges unofficially ramifications of joint custody plans. They catalog the cling to it today. Nevertheless, the prevailing legal test in all advantages and disadvantages of joint custody and outline states is "the best interests of the child" (Finlay v. Finlay. the role of the clinician in counseling and evaluating families 1925). In general, however,"best interests" means that judges regarding this custody option. They rightly differentiate the must determine which arrangement best fulfills the needs of needs (or rights) of parents who seek joint custody from the the specific children involved. The argued benefit of this overriding needs and interests of the children who must live approach is to place the judicial magnifying glasson the chil­ with the arrangement. dren, making them the most important part of the process. Several organizations have published standards and The concept represents the full embodiment of parens guidelines for evaluating child custody disputes: The patriae. American Psychiatric Association Task Force on Clinical However, the best interests concept remains an ambiguous Assessment in Child Custody (1981) , the American one . In practice, it refers to whatever fosters the positive Psychological Association (1994), and the American development of the child, but it can be interpreted by judges Association of Family and Conciliation Courts (1994). The in a variety of ways, ranging from financial suitabiliry to psy­ standards of the American Psychiatric Association and the chological attachment. It has been argued that the "best inter­ American Psychological Association provide excellent ests" concept perpetuates the adversarial system by inviting reference sections that list guidelines
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