Monday, July 23, 2012

Child Custody Evaluations: Solution or Contributing Cause to Ongoing Conflict?

When your only tool is a hammer, every problem looks like a nail.  Abraham Maslow

Family law professionals, especially family court judges, face difficult decisions every day. Among the most challenging are the high conflict custody cases where both parties are angry and intransigent, often trading explosive allegations about the other party's character and parenting flaws. Faced with these kinds of dilemmas, lawyers and judges search for an impartial third party to provide an "objective" perspective to help resolve the dispute and prevent further litigation and damage to the children. Frequently, this means turning to a mental health professional (almost always a psychologist) to conduct a "child custody evaluation" and report back to the court with a recommendation. I know, I have been one of those evaluators as a court appointed expert, and as a divorce litigation consultant, I have, until recently recommended child custody evaluations to my clients. No more.

Some background facts before I explain my rationale for my radical change of position.

  • Only 30% of divorces occur in high conflict marriages--70% of all divorces are low conflict.
  • Even with those numbers, 98-99% of divorces settle without a trial.
  • Parents agree to custody arrangements on their own 90% of the time (Melton,  et al 2007)
  • The latest census data finds that 78% of divorced children live primarily with their mother and 12% with their father. (Best available data on base rates for which parent ends up with "primary possession" after a divorce.)
Let's pause here for a minute. This means that, left to their own devices, most couples either agree to let mom have primary possession, or circumstances eventually evolve to mom having primary possession in 4 out of 5 divorces (they also agree to letting dad have primary possession in some cases). Regardless of the rhetoric about "equal rights" for dads, this is the reality, and since 90% of these arrangements are the result of agreements between the parents, it is hard to argue that the courts are driving primary possession by moms. Ok, but what about those high conflict cases that don't settle custody issues by agreement (including mediation)?
  • Since low conflict (and even many high conflict) divorces settle without trial, that means the 1-2% of trial cases comes from the 30% of high conflict divorces, making the odds of trial in a high conflict case about 1 in 30 to 1 in 15, or 3-6%. 
  • The best available research suggests that a child custody evaluations lack ANY scientific evidence for their validity or reliability  (Emery, Otto, and Donohue, 2005)
  • There is NO psychological test that is a valid measure of "best interest of the children" nor to deciding the issue of either custody or possession.
  • Nationally, the average cost of a custody evaluation is just under $4000 (in Dallas and surrounding counties in Texas, that number is at least twice that).
  • The only long term studies of child custody evaluations (there are only 2) have found that child custody evaluations INCREASE the chances of later re-litigation by 2-3 times over those cases with no child custody evaluation! 
In my career as a divorce litigation consultant, I have had the opportunity to review hundreds of child custody evaluations. These reports range from 10-40 pages long, take anywhere from 15-40 hours of time to prepare, and cost many thousands of dollars. Most of them recommended "joint custody", and many of them recommended 50/50 possession or visitation. On it's face, recommending a joint custody in a high conflict divorce is absurd! The fact that the litigation has proceeded this far is proof that cooperation is unlikely without some intervention to resolve the underlying conflict between the parents. No child custody evaluation is needed to send parents off to counseling or parent facilitation.

There is NO scientific support or basis, based on psychological testing nor any scientific research, for those recommendations (or any other). None. And not one of those reports (including mine) ever mentioned that fact. We all pretend that we're being objective and scientific but in fact, in the absence of any scientific support for the process, the results are purely personal opinion driven by our own values and beliefs (or biases and prejudices) and dressed up in psychological terminology. Well intentioned opinion but mere personal opinion nonetheless.

Lawyers and judges seek child custody evaluations to help break the impasse in high conflict divorces where the parties cannot agree on child custody issues in hopes of avoiding litigation. Who can blame them? And it is true that in some cases, the child custody evaluation report which supports or fails to support the allegations of one parent or the other sometimes leads to a settlement in the short run. That's sort of a good thing. But remember, the goal of a child custody evaluation is to resolve the custody dispute.

The problem is, the underlying problem of ongoing parental conflict is NOT resolved in a child custody evaluation, and the only available scientific evidence suggests that the child custody evaluation made it worse not better since the EVALUATION process itself apparently increased the odds of re-litigating later by two to three times. If child custody litigation is viewed as an illness, and the prescribed treatment (a child custody evaluation) eliminates the symptoms in the short run but triples the odds of the disease returning in a few years, in any other field of medicine, the treatment would be taken off the market as ineffective and unreasonably dangerous!

As a professionally trained and former forensic psychologist and child custody evaluator,  (and co-author of a child custody evaluation system) it pains me to say this, but the available evidence suggests that child custody evaluations are part of the problem NOT part of the solution for high conflict divorces. The risks outweigh the benefits, and until that changes, the procedure needs to be taken off the market. 

I know both lawyers and judges as well as psychologists will disagree, but I challenge anyone to read this article and present a compelling counter argument...

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