ATTORNEYS BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS

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1 ADDITIONAL ARTICLES ATTORNEYS BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS James N. Bow, Michael C. Gottlieb, and Hon. Dianna Gould-Saltman We surveyed a national sample of family law attorneys (N = 192) regarding their beliefs and opinions about child custody evaluations, particularly those performed by independent/private practitioners. Findings revealed participants strongly preferred court-ordered evaluations performed by doctoral-level psychologists who assumed a neutral position. The participants expressed concern regarding procedures used by evaluators, the application of evaluation data to the Best Interests of the Child Standard, and certain report components. A clear majority supported evaluators making recommendations about custody and parenting time, but their satisfaction with these evaluations varied widely. Specific concerns and suggestions noted by the participants are highlighted; we conclude with recommendations. Keywords: Child custody evaluations; forensic evaluations; attorneys; mental health professionals; custody; and parenting time I. ATTORNEYS BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS Child custody evaluations (CCEs) have been the subject of much skepticism (e.g., Grisso, 2005). Critics have focused on methodological and procedural issues (O Donohue & Bradley, 1999; O Donohue, Beitz, & Tolle, 2009), lack of empirical support for different child custody arrangements (O Donohue & Bradley, 1999; Tippins & Wittmann, 2005), concerns about addressing the ultimate issue (Grisso, 2005; Melton, Petrila, Poythress, & Slobogin, 2007; Tippins & Wittmann, 2005), and the level of clinical inference used by evaluators in drawing their conclusions (Tippins & Wittmann, 2005). O Donohue and Bradley (1999) even called for a moratorium on such evaluations believing that they could not be conducted ethically. Despite these criticisms, CCEs are still being performed, and much progress has been made (Bow, 2006).fcre_1372 Over the last ten years, books, journal articles, and workshops on CCEs have proliferated. The Association for Family Conciliation Courts (AFCC) updated their model standards (AFCC, 2007), the American Psychological Association (APA) recently approved its Guidelines for Child Custody Evaluations in Family Law Proceedings (APA, 2010), and Bow (2006) showed that CCEs have become more sophisticated and comprehensive over the past 15 years. While there have been advances in various types of Alternative Dispute Resolution (ADR) such as mediation, parenting coordination, and collaborative law, referrals for CCEs continue (Bow & Quinnell, 2004). Finally, some empirical research on attorneys perceptions of CCEs has emerged over the past ten years. Below we briefly review the work that forms the basis for our study. A. A BRIEF REVIEW In selecting an evaluator, LaFortune (1997) reported that lawyers rated the following characteristics as highly important: an unbiased approach, competence and fairness, good professional credentials, Correspondence: bow@michigan.gov; mcgottlieb@juno.com FAMILY COURT REVIEW, Vol. 49 No. 2, April Association of Family and Conciliation Courts

2 302 FAMILY COURT REVIEW sound presentation as a witness, and timely response. Bow and Quinnell (2004) later found that attorneys rated the following criteria as very important: objective/unbiased, relevant experience, good communication skills and professional presentation, and years of professional experience. LaFortune (1997) concluded that psychologists were strongly preferred as child custody evaluators, and Bow and Quinnell (2004) found that a slim majority were referred to doctoral-level psychologists (51%). LaFortune (1997) asked attorneys to rate the characteristics most helpful to them in CCEs. The following factors received the highest ratings: expert is unbiased; expert is cautious and stays within limitations; and evaluation is especially thorough. The attorneys were also asked to describe how the evaluations aided the legal process. The following received the highest ratings: helping the attorney prepare his/her case; enlightening the attorney about the situation; helping persuade the court in favor of the attorney s client; and helping parents focus on the child s needs. Attorneys and judges in the Bow and Quinnell (2004) study rated the following report components as most important: strengths and weaknesses of the parents, child interviews, recommendations for custody, child s history, and recommendation for parenting time. Finally, both of these studies found that participants strongly endorsed child custody evaluations being conducted by court-appointed professionals. The question that has provoked the most controversy is whether evaluators should offer opinions regarding the ultimate issues of custody and parenting time. Some researchers (e.g., Grisso, 2005; Melton et al., 2007; and Tippins & Wittmann, 2005) have raised serious questions about practitioners making such recommendations, but the extant survey data reveals a different picture. While LaFortune (1997) found that only a slight majority of attorneys (51%) felt that evaluators should provide such explicit recommendations about custody, Bow and Quinnell (2004) found that 84% of judges and 86% of attorneys thought such recommendations should be made. As we noted above, scholarship and professional standards regarding CCEs have evolved rapidly in recent years. Since family law attorneys represent the majority of child custody evaluation initiators and consumers, we felt it was important to explore their opinions on these as well as a number of other matters, for example: how satisfied are they with CCEs? What do they see as the strengths and weaknesses of such evaluations, and which areas need improvement? To answer these and other questions, the authors developed a survey that expanded on the extant literature. II. METHOD This study used SurveyMonkey to question family law attorneys about their attitudes and beliefs regarding CCEs. An describing the purpose of the study and a link to the survey were posted to the American Bar Association (ABA) Family Law Section listserv in November of Additional messages were posted in December of 2008 and January of At the beginning of the survey, a description of the study was again offered, as was information regarding informed consent for participants. It was also noted that the appropriate institutional review board had approved the study. The survey included 25 questions and took minutes to complete. It explored a range of topics, including: referral issues; relative importance of evaluation components; concerns regarding quality; satisfaction and usefulness; procedural issues such as length of time to completion; optimal length; value of differing sources of data; recommendations on the ultimate issues; factors to consider in selecting an expert; biggest complaints; and recommendations for improvement. III. RESULTS A. THE PARTICIPANTS A total of 253 attorneys responded to the survey; 192 completed an overwhelming majority of the questions and served as the source of the data. The participants represented 42 states and the District of Columbia. Sixty-four percent were female, their average age was 51, and they had an average of

3 Bow et al./attorneys BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS 303 nearly 18 years (17.92) experience practicing family law. The overwhelming majority (86%) worked in urban or suburban locations, and on average devoted 85% of their time to family law matters. Seventy-seven percent were members of the ABA Family Law Section. It is important to note that membership in the American Bar Association Family Law Section is open to any licensed attorney and is not based on any other specific or higher criteria. In addition, 11% were members of the American Academy of Matrimonial Lawyers (AAML) and 12% were board-certified as family law specialists, but not all states provide the latter designation. The number of participants was more than adequate for statistical analysis and much larger than previous studies focusing on attorneys (Ackerman & Kelly-Poulus, N = 153, as cited by Ackerman & Kane, 2001; Bow & Quinnell, 2004, N = 89; LaFortune, 1997, N = 162). B. REFERRAL ISSUES The participants reported that an average of 66% of their family law cases involved child custody and/or parenting time disputes. An average of 26% of their family law cases were referred for evaluation to family court services, while 16% were referred for comprehensive CCEs performed by independent practitioners. In the latter case, an average of 74% were requested prior to final judgment, whereas, 26% were requested for possible modification of existing judgments. Fifty-nine percent of the cases referred to independent practitioners were court-ordered and stipulated by the parties; 26% were court-ordered and not stipulated. Thus, a total of 85% were court-ordered. Only 10% were referred by stipulation without a court order and 5% were not stipulated and not court-ordered. Referrals to independent practitioners were mostly made to doctoral-level psychologists (55%). The next most frequent category was Master s-level Social Workers (13%), followed by Master slevel Psychologists (7%), Attorneys (7%), Psychiatrists (5%), Licensed Professional Counselors (5%), Marriage and Family Therapists (4%), and Others (5%). More than 50% of participants reported never referring an evaluation to Marriage and Family Therapists (59%), Attorneys (58%), or Licensed Professional Counselors (55%). An average of 77% of participants reported that the cost of a CCE was shared equally between the parties. In 10% and 4% of cases, the petitioner and respondent paid for evaluations, respectively, while the remaining cases were paid for in other ways. When asked if judges were appropriately assigning evaluations to independent practitioners, 64% of participants said yes. Participants were asked to rank their five main reasons for requesting an independent CCE. In rank order they were: parental conflict, mental problems of a parent, failure to facilitate the children s relationship, potential relocation, and impaired parenting skills. All of these were ranked by 40% or more of participants, but parental conflict was solidly ranked first. C. IMPORTANCE AND QUALITY OF REPORT COMPONENTS The participants were asked to rate the importance of the different components of a CCE when performed by an independent practitioner (see Table 1). For these ratings, a Likert scale was used. Participants were asked to rate the components from 1 (unimportant) to 5(extremely important). Average ratings for all components fell in the important range or above. Components receiving the top five ratings were the procedures utilized, Best Interests of the Child criteria, parent-child observation, child interview, and strengths and weaknesses of each parent. The lowest emphasis was placed on psychological testing of parents and children. Participants were then asked to rate how well each report component was addressed by independent practitioners on a scale from 1 (poorly) to 5(excellent), (Table 2). All components received an average quality rating of good (3.04 to 3.38), except for psychological testing of children, which was somewhat lower (2.92). A comparison of quality versus importance revealed some inconsistencies as child interviews, strengths and weaknesses of the parents, and addressing the Best Interests of the Child criteria fell in the lower half of the quality range.

4 304 FAMILY COURT REVIEW Table 1 Family Law Attorneys Mean Ratings for Importance of Report Components Component Current Study M SD Procedures utilized Best interests of child criteria Parent-child observation Child interview Strengths and weaknesses of each parent Child history Parents history Listing of documents reviewed Family history Recommendations for parenting time Recommendations for therapy, GAL, etc Recommendations for physical custody Clearly identified reason for evaluation Psychological testing of parent Psychological testing of child Note. Each component was rated for importance on the following Likert scale: 1 = unimportant, 2 = sometimes important, 3 = important, 4 = very important, and 5 = extremely important. N = 174. Table 2 Family Law Attorneys Quality Ratings of Child Custody Report Components Component Mean S.D. Ranking of Importance 1. Procedures utilized Listing of documents reviewed Parents history Family history Parent-child observation Child history Psychological testing of parent Child interview Strengths and weaknesses of each parent Clearly identified reason for evaluation Best interests of child criteria Recommendations for custody Recommendations for parenting time Recommendations for therapy, GAL, etc Psychological testing of child Note. Each component was rated for quality on the following Likert scale: 1 = poor, 2= fair, 3= good, 4= very good, and 5 = excellent. The ranking of importance reflects the rank order of ratings from Table 1. N = 171. D. SATISFACTION WITH EVALUATIONS AND INDEPENDENT PRACTITIONERS When participants were queried regarding their level of satisfaction with CCEs performed by independent practitioners, 23% indicated that they were very or extremely satisfied, 33% reported that they were satisfied, while 41% indicated they were somewhat satisfied. Only 3% of participants reported that they were totally dissatisfied.

5 Bow et al./attorneys BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS 305 Regarding the usefulness of different types of professionals, participants were asked to rate each profession from 1 (not helpful) to 5(extremely helpful). Doctoral-level psychologists received the highest average (4.01); 72% of participants rated this discipline as very helpful or extremely helpful. The next highest rating was for psychiatrists (3.24), but only 44% rated this profession as very helpful or extremely helpful. The average ratings for master s-level professionals was 3.02 or lower; 35% or fewer participants rated the services for each of those disciplines as very helpful or extremely helpful. E. PROCEDURAL ISSUES When participants were asked to cite the expected number of weeks for an independent practitioner to complete a typical evaluation, the average response was 7.28, but the range of responses varied from 1 24 weeks. One of the main complaints expressed by participants concerned the length of time necessary for independent practitioners to complete such assignments. We also asked about what participants considered the optimum length of a CCE report. Again, average scores can be misleading. While the average was pages, responses ranged from Yet, when asked if a thorough and detailed report was more likely to settle a case, 91% stated yes. Finally, when queried about the age at which a child s custodial preference should be considered, the participants responses ranged from 1 17 years, with an average of 11.71, but the most frequent response was 12 years. F. USEFULNESS OF DIFFERENT DATA SOURCES The participants were asked to rate (1 5) the usefulness of different data sources in custody cases. The highest rating was given to information from children s therapists (3.94); 71% of participants rated such information as very helpful or extremely helpful. The second highest rating was given to independent/private child custody evaluations (3.82); 68% of participants rated this data source as very helpful or extremely helpful. Information from children s teachers (3.66) was next; 55% of participants rated it as very helpful or extremely helpful. Other data sources with average ratings of 3.0 or above were information from parents therapists (3.15) and information from pediatricians (3.08). G. CUSTODY AND PARENTING TIME RECOMMENDATIONS The participants were queried about whether independent practitioners should offer recommendations regarding custody and parenting time. Findings indicated that 64% and 79% of participants supported custody and parenting time recommendations, respectively. We then asked the participants to rate their level of confidence in the observations, inferences, and conclusions that independent practitioners reached on a scale from 1 (no confidence) to 5(extremely confident). Tippins and Wittmann s (2005) four-level hierarchy was used: Level I Child custody evaluators report on what they observe; Level II Child custody evaluators draw inferences about a parent, child and family s functioning; Level III Child custody evaluators make implications and conclusions about such behavior for custody-specific variables; and Level IV Child custody evaluators make specific recommendations based on all the above information. As shown in Table 3, participants were confident about evaluators accurately reporting what they observed, but were only somewhat confident in their ability to draw appropriate inferences, discuss the implications/ conclusions of such behavior for custody-specific variables, and make specific recommendations based on the information collected. H. SELECTING AN INDEPENDENT PRACTITIONER The participants were asked to rate the importance of 14 factors in selecting an independent practitioner on a scale from 1 (not important) to 5(extremely important.); see Table 4. By far, the most

6 306 FAMILY COURT REVIEW Table 3 Participants Confidence Level with the Inference and Conclusions Reached by Independent Experts Tippins and Wittmann s Four-Level Hierarchy Mean S.D. Percentage for Each Rating Child custody evaluators reporting what they observe Child custody evaluators drawing an inference about a parent, child, or family s functioning Child custody evaluators making implications about such behavior for custody-specific variables Child custody evaluators making specific recommendations based on all the above information Table 4 Important Factors in Selecting an Independent/Private Expert Factor Current Study Bow & Quinnell (2004) M SD M SD Objective/unbiased Communication skills (e.g., oral and written) Years of child custody experience Professional presentation on witness stand Specialized assessment skills (e.g., domestic violence, sexual abuse, etc.) Professional reputation in the legal community Years of professional experience Knowledge of legal system and process Educational background (doctoral vs. master s) Cost Board certified or fellow status Membership in professional organizations Publications in child custody field Publications in general Note. Ratings were made on a Likert scale: 1 = not important, 2 = slightly important, 3 = important, 4 = very important, 5 = extremely important. N = 171. important factor was objectivity/unbiased, with an average rating of This was followed by three other factors: communication skills, years of child custody experience, and professional presentation on the witness stand; all with average ratings of approximately Other factors with ratings of approximately 4.0 were specialized assessment skills (i.e., domestic violence, sexual abuse, substance abuse, etc.), professional reputation within the legal community, and years of professional experience. These ratings were very similar to those of Bow and Quinnell (2004). I. BIGGEST COMPLAINT ABOUT CHILD CUSTODY EVALUATIONS We asked the participants to identify their biggest complaint(s) about CCEs in an open-ended narrative format. The responses were then categorized according to similarities in content. Seven categories were identified by more than 10% of the participants. The greatest percentage of complaints focused on problems with conclusions and recommendations (21%). Specific concerns in this area focused on evaluators indecisiveness, illogical

7 Bow et al./attorneys BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS 307 conclusions, ignorance regarding the Best Interests of the Child Standard, and making or not making recommendations. The second category was the length of time required to complete the evaluation and report (20%). The third group surrounded problems with the procedures utilized (18%). These included using unscientific methods, failure to cross-check data, over-reliance on testing, failure to use collateral sources, failure to perform a parent-child observation or home visit, and overlooking of relevant information. Also, 18% of the participants noted the evaluator s lack of objectivity, thus reinforcing the value that participants placed on evaluator objectivity/neutrality. The remaining categories included cost (14%), although one participant noted that you get what you pay for, the need for more comprehensive evaluations (13%), and the lack of adequately trained evaluators (11%). J. SUGGESTIONS FOR IMPROVING THE USEFULNESS OF CHILD CUSTODY EVALUATIONS Finally, participants were asked to suggest ways the usefulness of CCEs could be improved. A number of different responses were offered, but not surprisingly many corresponded with the biggest complaints noted above. The greatest percentage of responses surrounded the desire for evaluators to follow child custody guidelines/models (19%). More specifically, they suggested that practitioners place greater emphasis on collateral sources. The second highest category was the need to offer recommendations that were understandable, pragmatic, and logical (11%). The third involved improving the quality of report writing (9%). Suggestions included using plain English, avoiding jargon, providing more detailed information, utilizing a one-page summary at the end of the report, and organizing the report into more relevant sections (e.g., attachment, parenting skills, parental conflict, environmental stability, and emotional stability). Nine percent recommended improving communication among evaluators, attorneys, and the court. This category contained suggestions such as being able to access a report at least a few weeks prior to the scheduled hearings and using conferences to settle legal matters before hearings. Eight percent focused on the need for the court order to define clearly the reason(s) for the evaluation, and another 8% recommended that child custody evaluators receive better training, including the need for a clearer distinction between therapists and evaluators in the mental health professions. The remaining categories received percentages of six or less. These categories focused on the ongoing controversy about making recommendations regarding the ultimate issue, the need for evaluators to remain objective and neutral, the purpose/role of child custody evaluations within the court system, the need for specialized training for evaluators, the nature and focus of evaluations, fee issues, and the role and training of judges. IV. DISCUSSION We undertook this survey to explore recent changes in the beliefs and opinions of family law attorneys about CCEs. We felt such a survey was timely in light of recent criticism of CCEs (Tippins & Wittmann, 2005) and the impact this criticism might have on attorneys perceptions. Many of the findings from this study were consistent with prior research. For example, the number of cases (16%) referred to independent practitioners for CCEs was similar to that found by Bow and Quinnell (2004). Also, consistent with previous research (Bow & Quinnell, 2004; LaFortune, 1997), the majority of referrals were made to doctoral-level psychologists, indicating a strong preference for this discipline. The percentage of court-ordered evaluations had increased somewhat in comparison to previous research (Bow & Quinnell, 2004). We wondered if this increased percentage was due to evaluators greater awareness that being named in court orders provides a higher degree of protection in the form of immunity from civil litigation. We also found differences in the reasons that referrals were made to independent practitioners for CCEs. Parental conflict remained the primary reason, followed by mental health problems of a parent.

8 308 FAMILY COURT REVIEW However, the next three reasons varied from Bow and Quinnell s (2004) study. In the present study, failure to facilitate a child s relationship with the other parent, potential parental relocation, and impaired parenting skills, replaced allegations of sexual abuse, parental alcohol use, and allegations of physical abuse in the top five positions. The importance ratings for particular components of CCEs were all in the important and very important ranges, and the procedures utilized received the highest rating from participants and represented a large increase from its position (#10) in a previous study (Bow & Quinnell, 2004). The enhanced concern regarding evaluation procedures may be a consequence of the controversy regarding the empirical basis of these evaluations (e.g., Gould & Martindale, 2007; Tippins & Wittmann, 2005), as well as issues of admissibility (e.g., Daubert, 1993; Frye, 1923). In either event, we see this greater concern as welcoming. As attorneys are major consumers of such evaluations, their concern regarding higher standards can only be beneficial. The Best Interests of the Child criteria also increased in importance relative to previous work (Bow & Quinnell, 2004). When participants were asked how well the Best Interests of the Child criteria were addressed in CCEs, they rated it in the lower tier of responses. Perhaps most troubling of all was the finding that some evaluators seemed unaware of the legal standard. We do not know what prompted the participants to respond as they did, but we are concerned that their ratings were reflective of evaluators who make recommendations based largely on their clinical impressions rather than sound data or the relevant legal tests. On the other hand, as we noted above, their concern regarding more closely linking assessment data to legal standards can only serve to enhance the quality of CCEs. The component identified as least important in CCEs was psychological testing of the parents and child. This factor dropped from 8 th place in the previous study (Bow & Quinnell, 2004) to 14 th (out of 15) in this one. We welcome this finding. Psychologists have worked hard to inform attorneys of the limits of testing and not be seduced by them simply because they produce numbers (e.g., Gottlieb & Siegel, 2002; Gould-Saltman, 2005). Our results suggest that these efforts have borne fruit. Testing should not be elevated to a position it does not deserve, but we contend that it should remain an important component of CCEs because it has the potential to generate hypotheses that evaluators may not have considered. The extent and type of testing should be a matter of professional judgment. Our participants gave only good ratings to 15 report components; these ratings were similar to previous findings (Bow & Quinnell, 2004). Apparently, family law attorneys continue to feel lukewarm about the quality of CCEs. We are not sure what this means, but we hope that it reflects the fact that the lawyers are now more sophisticated consumers, are aware of professional standards for CCEs, and feel that many evaluators do not adhere to them as well as they should. When comparing quality and importance ratings, addressing the Best Interests of the Child standard fell in the lower tier of responses regarding quality, as did the child interview and strengths/ weaknesses of each parent. It is noteworthy that all of these areas received high importance ratings. This sends a strong message to evaluators about the need for improvements in these areas. Our participants reported that the optimum length of a CCE report should be 22 pages. This result was similar to a previous finding (Bow & Quinnell, 2001), but significantly greater than the 12 pages preferred by Michigan attorneys (Bow & Quinnell, 2004). On the other hand, the participants almost universally agreed that detailed reports facilitated settlement of cases. This finding raises interesting questions regarding the practitioner s work product. For example, we are aware of extremely wide variability across the nation in the length and detail of CCE reports. In some locales, reports can easily be 4 5 times longer than those preferred by our participants. At the same time, the participants said that they preferred more detail. We do not know how to resolve this apparent conflict, but we wonder if the greater detail requested by our participants did not refer to more detailed information, but to a desire for greater analysis of the data in relation to the legal standards. Our data, as well as those from previous studies (Bow & Quinnell, 2001, 2004), showed that the average number of weeks attorneys felt it should be necessary to complete an evaluation was far less

9 Bow et al./attorneys BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS 309 than the number provided by evaluators. Similarly, all the studies found that one of the biggest complaints was the length of time required for completion of these evaluations. We found these results somewhat surprising, since we are aware of a number of jurisdictions where such evaluations routinely take far longer. In some cases, this dissatisfaction may be due to independent practitioners failing to provide accurate information to the attorneys and/or the court regarding realistic time frames for completion of such assignments. A second factor is that independent practitioners are not fully in control of the process, since they are dependent on the cooperation of the parties as well as the timely production of collateral information. One way or another, we feel it is incumbent upon evaluators to inform the court and the attorneys at the outset of an evaluation of these limitations and to inform them in a timely manner when barriers to completion arise. A very high percentage (71%) of participants rated information from the child s therapist as very helpful or extremely helpful. As noted by Greenberg and Shuman (1997) and Strasburger, Gutheil, and Brodsky (1997), there are distinct differences between the roles of forensic evaluators and therapists. For example, therapists do not take an evaluative and neutral stance with patients. Rather, they accept, support, and advocate for their patients; they do not, for example, perform independent investigations to determine the veracity of their patient s complaints. When therapists provide information to the court, their input should be child-focused, with an emphasis on the child s problem areas, goals, progress in therapy, and the degree of participation by the parent(s). It is important that such information be factual and limited to data collected, such as diagnosis, treatment plan course, and progress. Moreover, therapists should avoid offering opinions regarding parental fitness, custody and parenting time. It is important that attorneys remain mindful of these restrictions, as some therapists may be inclined towards providing input from an advocacy position, even though they lack an adequate foundation for doing so. Moreover, testimony by therapists may have a detrimental impact on the therapist-patient relationship because of information revealed. In the end, it would be wise for professional associations to develop specific guidelines regarding therapist s involvement in family court matters. Sixty-four percent of our participants wanted evaluators to offer recommendations about custody, and an overwhelming majority (79%) felt that recommendations should be made regarding parenting time. Yet, with regard to the biggest complaints, the participants fell into two groups, one supporting the need for such recommendations and the other opposing them. These conflicting data reflect a controversy that exists among social scientists as well. How far should one go in making such recommendations? To what extent will the data support the recommendations? Moreover, do evaluators have a greater ability to identify a particular parenting time plan that will meet the children s needs in the future? The latter question is complicated by the uniqueness of each child custody case, which greatly hinders the ability to conduct research in this area. Custody evaluators have the obligation of maintaining scientific responsibility and not exceeding the limitations of their data (e.g., American Psychological Association, 2002, 2.04). As a result, some have raised questions regarding whether evaluators ought to offer ultimate issue testimony at all (e.g., Melton, Petrila, Poythress, & Slobogin, 2007; Tippins & Wittmann, 2005). At the same time, many evaluators live in communities where such recommendations are expected, and they will not receive future court appointments if they fail to offer them. This issue creates a significant ethical dilemma for conscientious evaluators who wish to adhere to their ethical standards and want to help families resolve their differences. It is beyond our scope to pursue this issue further, but, at a minimum, we recommend that evaluators clarify expectations prior to accepting assignments to perform CCEs, and apprise both lawyers and the court of the limitations of their data. Regarding complaints and suggestions for evaluators, our participants expressed a desire for evaluators to follow child custody evaluation guidelines/model standards; draw conclusions and make recommendations that are logical, pragmatic, and based on the Best Interests of the Child standard/ criteria; maintain an objective and neutral evaluator role; and provide custody reports that are detailed and avoid jargon. Issues were also raised about the cost of child custody evaluations, the need to complete evaluations in a shorter time period, the need for better trained evaluators, and the need for increased availability of evaluators.

10 310 FAMILY COURT REVIEW V. RECOMMENDATIONS Family lawyers are a major consumer of CCEs. They cannot dictate the ethical responsibilities of evaluators, but they have a great deal to say about what is helpful to them in settling cases. While we are reluctant to make recommendations based on survey data, we feel that some issues are clear enough that reasonable recommendations may be offered. In many ways, much of the concern of our participants falls within the ambit of informed consent. That is, the court and the bar have a right to know what to expect when a CCE is ordered. At that time, we believe it is the obligation of the evaluator to inform the lawyers, and perhaps the court, regarding a number of issues. First, in many jurisdictions, court orders are far from specific and can leave both evaluators and lawyers at a loss regarding how to proceed. When such situations arise, we recommend that the evaluator take it upon him/herself to raise these issues with the lawyers and the court, if need be. Specifically, the justice system and the parties are best served when the nature and scope of the assignment are clear; the amount of detail desired has been expressed; the amount of time it will take to complete the assignment has been provided; and the requested recommendations are specified. Resolving these issues at the outset saves time, money, and serves to expedite the process. Since attorneys are often less aware of these issues, the responsibility of the evaluator is to identify and make known his/her concerns before proceeding. However, when attorneys are aware that these issues should be addressed, they have the obligation of doing so as well. For those who choose to make recommendations regarding the ultimate issues of custody and parenting time, we recommend adding qualifying language to reports that the evaluator is addressing the best psychological interest of the child(ren), that such recommendations are not intended to invade the province of the court, and that the court may have other issues to take into consideration when making its order. Evaluators are urged to consult experienced family lawyers in their jurisdictions regarding specific language to be included in their reports. Second, evaluators should be clear regarding the limitations of psychological testing. We were pleased to see that our participants seemed to have a more sophisticated understanding of this issue, but this does not mean that they all do. It remains the obligation of the evaluator to state clearly the limitations of psychological testing in forensic contexts and to limit their use to that of hypothesis generation. Third, our participants placed a high value on reports of children s therapists. It is important for attorneys to understand the differences between therapeutic and evaluative roles. In many cases therapists are not unbiased participants because they might not involve both parents in a child s treatment, and they can become biased in favor of one parent or the other based on limited data. In our view, involving only one parent is not a good clinical practice. When therapists involve both parents, they are in a far better position to offer helpful information to evaluators. As previously highlighted, such information should focus on factual data, such as problem areas, goals, progress in therapy, and the degree of participation by the parent(s), not opinions about parental fitness, custody, and parenting time. Furthermore, attorneys and therapists need to be mindful of how the patient-therapist relationship may be detrimentally impacted when therapists become involved in legal proceedings. Finally, our participants were clear in their desire for evaluators to tie their data to the recommendations. Attorneys expect evaluators to connect the dots, and it is the obligation of evaluators to do so to the extent the data will allow. It is important that evaluators do this, since it is not something attorneys can do for themselves. In some ways, this is the most obvious, yet most difficult, recommendation of all because it requires evaluators to think and write in the step-by-step, logical, and analytical manner in which lawyers are trained. That is, the consumers of CCEs want to know how evaluators came to the conclusions that they did and for them to include all the steps in their thinking. In other words, evaluators need to show their work with each conclusion tied to the specific facts from which it was derived. A thoroughly investigated, well-presented, logical and factual report is successful when it provides the court with enough, well-supported information that the court or

11 Bow et al./attorneys BELIEFS AND OPINIONS ABOUT CHILD CUSTODY EVALUATIONS 311 decision-maker can reach his/her own conclusion. This is a high bar, but we see no reason why evaluators should not strive to achieve it. VI. CONCLUSION Complaints to state regulatory boards regarding CCEs are among the most frequent ones received. This is not surprising since such evaluations often make one or both parties unhappy. While dissatisfaction cannot be eliminated, the participants in our survey have provided some guidance to custody evaluators that they are well-advised to consider. We are pleased to see that many of our participants seemed to have a very sophisticated understanding of the custody evaluation process. We hope they have educated themselves in order to better serve their clients and have learned from mental health professionals in an interdisciplinary dialogue which should continue, as it will benefit both professions. At the same time, increased understanding on the part of the bar seems to have had an unintended consequence. It appears to have raised the bar s expectations for CCEs. Even if that outcome was unintended, it is undeniably a good outcome. It is a sign that we are making progress. REFERENCES Ackerman, M. J., & Kane, A. W. (2001). Psychological experts in divorce actions (3rd ed.) Cumulative Supplement, New York: Aspen Law & Business. American Psychological Association (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, American Psychological Association (2010). Guidelines for child custody evaluations in family law proceedings. American Psychologist, 65, Association of Family and Conciliation Courts (2007). Model standards of practice for child custody evaluation. Family Court Review, 45, Bow, J. N. (2006). Review of empirical research on child custody practice. Journal of Child Custody, 3, Bow, J. N., & Quinnell, F. A. (2001). Psychologists current practices and procedures in child custody evaluations: Five years post American Psychological Association guidelines. Professional Psychology: Research and Practice, 32, Bow, J. N., & Quinnell, F. A. (2004). Critique of child custody evaluations by the legal profession. Family Court Review, 42, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Frye vs. United States, 293 F (D.C. Cir 1923). Gottlieb, M. C., & Siegel, J. C. (2002). Debunking the myths: Uncovering the mysteries of psychological evaluations. Providence, RI: American Bar Association, Family Law Section. Gould, J. W., & Martindale, D. A. (2007). The art and science of child custody evaluations. New York: Guilford Press. Gould-Saltman, D. (2005). One, two, three, testing: The attorney perspective on psychometric testing in child custody evaluations. Journal of Child Custody, 2, Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, Grisso, T. (2005). Commentary on Empirical and Ethical Problems with Child Custody Recommendations: What now? Family Court Review, 43, LaFortune, K. A. (1997). An investigation of mental health and legal professionals activities, beliefs, and experiences in domestic court: An interdisciplinary survey. (Unpublished doctoral dissertation). University of Tulsa, Oklahoma. Melton, G. B., Petrila, J., Poythress, M. G., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York: Guilford Press. O Donohue, W. T., & Bradley, A. R. (1999). Conceptual and empirical issues in child custody evaluations. Clinical Psychology: Science and Practice, 6, O Donohue, W. T., Beitz, K. & Tolle, L. (2009). Controversies in child custody evaluations. In J. L. Skeem, K. S. Douglas, & S. O. Lilienfeld (Eds.). Psychological science in the courtroom: Consensus and controversy (pp ). New York: Guilford Press. Strasburger, L. H., Gutheil, T. G., & Brodsky, A. (1997). On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, Tippins, T. M., & Wittmann, J. P. (2005). Empirical and ethical problems with custody recommendations. Family Court Review, 43,

12 312 FAMILY COURT REVIEW JAMES N. BOW, Ph.D., ABPP, is board certified in Forensic Psychology. He is Director of Psychology at Hawthorn Center and Adjunct Assistant Professor at Wayne State University, School of Medicine, Department of Psychiatry and Behavioral Neurosciences. Research interests involve child custody practice. MICHAEL C. GOTTLIEB, Ph.D., ABPP, practices family and forensic psychology in Dallas, Texas. He is Board Certified in Family Psychology, a Fellow of the American Psychological Association, and a Clinical Professor at the University of Texas Southwestern Medical Center where he teaches professional ethics and family therapy. He is a past member of the APA Ethics Committee and its Committee on Professional Practice and Standards. His research focuses on ethical decision making, the psychology/law interface, and risk management. Dianna J. Gould-Saltman is a judge with the Los Angeles Superior Court, presently serving in a family law department. Prior to her June 2010 appointment to the bench, Judge Gould-Saltman practiced family law for 24 years. She is a Certified Family Law Specialist (The State Bar of California Board of Legal Specialization) and a Fellow of the American and International Academies of Matrimonial Lawyers.