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...http://www.cstaffordlaw.com/Emery.pdf

Co-Parenting: Using the CAPT system as a check up

“All happy families resemble each other. Each unhappy family is unhappy in its own way. "  Leo Tolstoy in Anna Karenina

As the legal system has moved increasingly to support the policy of "joint custody"  (joint managing conservatorship-JMC- as it's called in Texas), the reality is that physical "custody" or "primary residence" for the children still resides with mom in about 85% of divorce and custody cases. But regardless of where the children live, most (about 60%) of those kids will have regular visits with the non-custodial parent, and the two parents and their fractured family will have to cooperate in some  minimal ways to function as co-parents to their children. 

The research is very clear. Kids who have a working co-parenting arrangement suffer less and function better after the divorce than those children who don't have regular involvement from both of their parents. Regardless of the many challenges in co-parenting with a person whom you have recently divorced, the kids benefit if the co-parenting relationship is free from hostility; if the hostility between the parents continues, the children will suffer, many of them permanently harmed by the toxic environment in which they live. 

In between the extremes of no visitation, and the ideal of genuinely cooperative co-parenting without conflict, lies the vast majority of co-parenting relationships where mostly well meaning people do their best to make the post-divorce life of their children as good as they can. The question for many of them is: How are we doing and how can we tell?

Here's a simple four factor system for parents to use to evaluate their co-parenting   track record, and then use as a guide to making any improvements that may be needed. The four factors are: Communication, Affection, Power, and Task Completion.

Communication

Good communication between co-parents is open, not guarded, and information is neither withheld nor shared with hostile intent. Information about school, grades, activities, friends, health, pets, awards, school discipline, or emotional crises are freely shared in a timely and thoughtful and considerate way. The communication is appropriately "dosed" not to much and not too little.

When this level of open and free flow of information isn't yet possible, then the BIFF system is used: communication is Brief, Informative, Firm, and Friendly.

Affection

In healthy intact families, affection is freely expressed and warmly received. Children hug their parents and parents hug their children, and touch is used as a way to communicate genuine care and concern. In fractured families, children sometimes withhold public displays of affection for one or both parents because they are afraid that any expression of affection for one parent will be interpreted as disloyalty to the other parent. And parents can likewise use their overly exuberant displays of affection at times of exchanges of custody as a weapon aimed at their former spouse (and now co-parent). 

For co-parents the goal is to express affection to your children, and to encourage your children and your co-parent to express their affection without concern that it will be threatening. 

Power

In healthy intact families, power is usually shared by the parents, with decisions made by joint consultation. For some decisions, dad will have more influence and final authority; for others, mom's expertise will make her the more influential parent. In any case, the final authority will rest with the parents: NEVER with the children. In healthy families, children are NEVER in charge.

For most co-parents, the power arrangements have been settled by the terms of the divorce decree. The decree should spell out who has the "right" to make decisions about health care, counseling for the kids if needed, educational issues, and other matters. The decree is intended to be the "go to" if co-parents cannot cooperate. Regardless of who owns the right according to the decree, the more that co-parents cooperate in decision making, the better the children will do in the long run. 

In co-parenting families, effective use of power requires healthy communication (see above). The opportunity for children to manipulate parents, and to gain control to the point where it is bad for the children, is greatly increased when communication between co-parents is poor.

Task Completion

Healthy intact families get things done. Income is produced, bills get paid on time, household chores and maintenance are done regularly and without drama, homework is done early and checked by mom and dad, after school activities are enrolled, paid for, and kids get to practices and games (or rehearsals and performances) regularly and on time without drama. Life is busy, active, and productive.

The challenge for co-parents is much greater because of the physical (and emotional) distance between the parents. Task completion requires much more attention, focus, and discipline for both parents and children in fractured families. However, the bottom line for the children is the same: if the kids are doing their daily chores, getting to school, doing their work, getting to their activities, and getting to bed on a regular schedule, then this part of family life is being successfully accomplished after divorce.

If any of these four areas of family life are not working as well as you would like, then the first thing to do is to start with the first factor: communication. Have a chat with your co-parent at a Starbucks, and express your concern, and have a suggested solution. If the two of you have a history of conflict, then start with email rather than face to face discussions. Remember to use the BIFF system: keep the email Brief, Informative, Firm and Friendly. Stick to one issue at a time, don't do a long laundry list. Solve one issue, and then move on with a track record of success.

Your children will benefit from your efforts by having the advantage of two parents who work together for their welfare, just like kids from healthy intact families. Do it for your kids.