Analysis in Child-Custody-Evaluation Reports: A Crucial Component 1

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1 Published in Family Law Quarterly, Vol. 48, No. 1 (Spring 2014) p by the American Bar Association. All Rights Reserved. Analysis in Child-Custody-Evaluation Reports: A Crucial Component 1 ROBERT A. SIMON* & PHILIP M. STAHL** Analysis is the careful study of something to learn about its parts, what they do, and how they are related to each other. 2 I. Introduction One of the tools available to courts when families are engaged in child custody disputes following separation and divorce is the child custody evaluation. Courts use child custody evaluations as an aid to judicial fact finding and decision making. While family law practitioners, family court judicial officers, and mental health professionals who focus on divorce and child custody disputes are familiar with child custody evaluations, the process is relatively new. Like most fields that are still developing and maturing, the literature has focused on issues such as what is and how to, i.e., defining the scope and purpose of child custody evaluations and on how these evaluations are best carried out. 3 * Ph.D., nationally known expert in forensic psychology, consulting in cases of disputed child custody. His practice is based in San Diego, California. ** Ph.D., ABPP (Forensic), specializes in relocation matters and is a nationally known forensic psychologist based out of Maricopa County, Arizona. He serves as a consultant and expert witness in conflicted child-custody litigation. 1. In 1995, one of the authors was at a meeting of attorneys and custody evaluators. One of the attorneys present criticized the evaluators for the way they concluded their evaluations. Essentially, he told all of the evaluators present that they did a good job of gathering useful family information, but a very poor job of presenting their expert analysis of the case. Instead, they simply wrote a summary of the data collected and then made recommendations, without explaining the basis for their conclusions. 2. Analysis Definition, Merriam-Webster.com, (last visited Feb. 26, 2014). 3. See, e.g., PHILIP M. STAHL, CONDuCTINg CHILD CuSTODy EVALuATIONS: FROM BASIC TO COMPLEx ISSuES (2010); Steven Sparta & Philip M. Stahl, Psychological Evaluation for Child Custody, in FORENSIC MENTAL HEALTH ASSESSMENTS OF CHILDREN AND ADOLESCENTS (Steven Sparta & gerald Koocher eds., 2006). 35

2 36 Family Law Quarterly, Volume 48, Number 1, Spring 2014 Some literature has focused on issues such as how to effectively interview parents and children embroiled in custody disputes, 4 how to carry out parent-child observations in a fashion that informs the questions at hand, 5 the use of psychological testing and the proper role of testing in custody evaluation, how to gather collateral data, and how to weigh the information from collateral informants. Other literature has focused on the proper role of the child custody evaluator, 6 role boundaries, the nature of the types of questions that can be answered competently by custody evaluations, and the case situations in which custody evaluations are most likely to be helpful to the court. 7 There is also literature focused on the importance of integrating the clinical art of evaluations with a scientific approach that is balanced, manages the risks of bias and utilizes procedures that are reliable and valid. 8 There, however, is not much written about how to write analytical custody evaluations that share with the attorneys and court the evaluator s expert analysis of the case, integrating the family data with known research and putting the parts together. This article is written to support and explain these ideas and to give attorneys the tools to recognize a thorough and proper analysis in a child custody evaluation. II. Custody Evaluators Must Know Empirical Research As scientist-practitioners, child custody evaluators must do their work in a manner that is informed by the theoretical literature and empirical research on families, child development, parenting, and divorce. They must use reliable and valid methods and they must reliably apply them to the facts of the case. Indeed, Federal Rule of Evidence 702 states that experts may testify in the form of an opinion if the testimony is based on sufficient facts or data and if the testimony is the product of the application of reliable principles and methods. 9 The child custody literature has also focused on the importance of child custody evaluators being able to 4. Kathryn Kuehnle, Lyn greenberg, & Michael gottlieb, Incorporating the Principles of Scientifically Based Child Interviews into Family Law Cases, 1 J. CHILD CuSTODy 97 (2004); Linda Saylor gudas & Steven Sparta, Forensic Interviewing of Children and Adolescents, FORENSIC MENTAL HEALTH ASSESSMENTS OF CHILDREN AND ADOLESCENTS. 5. Daniel Hynan, Parent-Child Observations in Custody Evaluations, 41 FAM. CT. REV. 214 (2003). 6. Stuart greenberg & Daniel Shuman, Irreconcilable Conflict Between Therapeutic and Forensic Roles, 28 PROF. PSyCHOL. RES. & PRAC. 50 (1997). 7. JONATHAN gould, CONDuCTINg SCIENTIFICALLy CRAFTED CHILD CuSTODy EVALuATIONS (2d ed. 2006). 8. JONATHAN gould & DAVID MARTINDALE, THE ART AND SCIENCE OF CHILD CuSTODy EVALuATIONS (2007). 9. A child custody evaluation report is an expert scientific opinion and, therefore, must conform with the prevailing rules of evidence in the jurisdiction in which the reports are submitted for consideration by the court.

3 Analysis in Child-Custody-Evaluation Reports 37 integrate the literature from fields such as divorce, child development, and family life with the data gathered in the course of a particular evaluation. Doing so increases the probability of a given evaluation being valid and reliable, making it more useful to the court. 10 Much of the divorce-related literature has focused on a range of critical psychological issues that are related to the children s adjustment when divorce takes place and after the divorce has happened. Knowledge and information about these issues is of vital importance for the child custody evaluator. While child custody evaluators may have significant experience from years working in the field and many observations of factors that are helpful in predicting how children adjust and cope, one s experience is not enough. Knowledge of empirical research is critically important. Thus, it is essential that child custody evaluators maintain ongoing familiarity with research on child development; 11 impact of divorce on children; 12 age-appropriate parenting plans; 13 coparental conflict; 14 domestic violence; 15 alienation, estrangement, gatekeeping; 16 and relocation, 17 includ- 10. STAHL, supra note 3; PHILIP STAHL & ROBERT SIMON, FORENSIC PSyCHOLOgy CONSuLTATION IN CHILD CuSTODy LITIgATION: A HANDBOOK FOR WORK PRODuCT REVIEW, CASE PREPARATION AND ExPERT TESTIMONy (ABA 2013). 11. See, e.g., Joan Kelly & Michael Lamb, Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children, 38 FAM. CT. REV. 297 (2000). 12. See, e.g., Joan Kelly & Robert Emery, Children s Adjustment Following Divorce: Risk and Resilience Perspectives, 52 FAM. REL. 352 (2003); CONSTANCE AHRONS, THE good DIVORCE (2009); Paul Amato & B. Keith, Parental Divorce and the Well-being of Children: A Meta Analysis, 110 PSyCH. BuLL. 26 (1991). 13. See, e.g., Michael Lamb, Placing Children s Developmental Interests First: Developmentally Appropriate Parenting Plans, 10 VA. J. SOC. POL y & L. 98 (2008); Joan Kelly, Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce, 19 J. AM. ACAD. MATRIM. L. 237 (2005). 14. See, e.g., Janet Johnston, High Conflict Divorce, 4 THE FuTuRE OF CHILD, 165 (1994); Marsha Kline Pruett & T. Donsky, Coparenting After Divorce: Paving Pathways for Parental Cooperation, Conflict Resolution, and Redefined Family Roles, in COPARENTINg: A CONCEPTuAL AND CLINICAL ExAMINATION OF FAMILy SySTEMS (2011). 15. See, e.g., Janet Johnston & Nancy Ver Steegh, Historical Trends in Family Court Responses to Intimate Partner Violence: Perspectives of Critics and Proponents of Current Practices, 51 FAM. CT. REV. 63 (2011); Peter g. Jaffe et al., Custody Disputes Involving Allegations of Domestic Violence: Toward A Differentiated Approach to Parenting Plans, 46 FAM. CT. REV. 500 (2008); Joan B. Kelly & Michael P. Johnson, Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions, 46 FAM. CT. REV. 476 (2008); Nancy Ver Steegh & Clare Dalton, Report from the Wingspread Conference on Domestic Violence and Family Courts, 46 FAM. CT. REV. 454 (2008). 16. See, e.g., Special Issue: Alienated Children of Divorce, 39 FAM. CT. REV. 1 (2001); Michael Saini et al., Empirical Studies in Alienation, in PARENTINg PLAN EVALuATIONS: APPLIED RESEARCH FOR THE FAMILy COuRT (Kathryn F. Kuehnle & Leslie M. Drozd eds., 2012); William Austin et al., Parental Gatekeeping and Child Custody/Access Evaluations: Part I: Conceptual Framework, Research and Application, 51 FAM. CT. REV (2013). 17. See, e.g., Philip Stahl, Emerging Issues in Relocation Cases, 25 J. AM. ACAD. MATRIM. L. 425 (2013); William g. Austin, A Forensic Psychology Model of Risk Assessment for Child Custody Relocation Law, 38 FAM. CT. REV. 192 (2000); William g. Austin, Relocation,

4 38 Family Law Quarterly, Volume 48, Number 1, Spring 2014 ing international relocation. 18 A. Forensic Versus Clinical Services Child custody evaluators are providing forensic psychology services, not clinical psychology services. 19 For example, clinical psychologists diagnose and treat psychological dysfunction and psychopathology. They treat patients. They try to help their patients. They are typically accountable to the patient, working with the consent of and at the pleasure of the patient. The therapist-patient privilege exits, and information gained is confidential. The patient has control over the data. Forensic psychologists assess and report on issues within the context of the law. They do not diagnose, they do not offer treatment and, therefore, there is no patient. In the context of child custody evaluations, the forensic psychologist serves at the pleasure of the court. The forensic psychologist is appointed by the court and is not there to help the individual being assessed. Instead, the forensic psychologist is there to assist the court as an arm of judicial factfinding. There is no confidentiality, and the subject of the evaluation does not control the use of the data. Another focus of the literature has been on the need for custody evaluators to understand relevant law in order to ensure relevance for the court. This includes understanding the rules of evidence in the jurisdiction so that the evaluation procedures, the evaluation report, and potential deposition or trial testimony conforms to the rules of evidence and are, therefore, qualified to be considered by the court. 20 Child custody evaluations are complex forensic studies of the family whose purpose is to identify the needs of the child, the capacities of each parent, and a description of the resulting fit that is thought to promote the best interests of the child. 21 How one carries out the evaluation and utilizes the various components of the forensic study is of great importance. Research, and Forensic Evaluation, Part II: Research in Support of the Relocation Risk Assessment Model, 46 FAM. CT. REV. 347 (2008); William g. Austin, Relocation, Research, and Forensic Evaluation, Part I: Effects of Residential Mobility on Children of Divorce, 46 FAM. CT. REV. 137 (2008); Philip M. Stahl, Avoiding Bias in Relocation Evaluations, 3 J. CHILD CuSTODy 109 (2006). 18. See, e.g., Stahl, supra note 17. Leslie E. Shear & Leslie M. Drozd, To Speak of All Kinds of Things: Child Custody Evaluations and the Unique Characteristics of Relocations to Foreign Countries, 10 J. CHILD CuSTODy 325 (2013); Richard A. Warshak, In a Land Far, Far Away: Assessing Children s Best Interests in International Relocation Cases, 10 J. CHILD CuSTODy 295 (2013). 19. Stahl & Simon, supra note 10. John A. Zervopoulos, CONFRONTINg MENTAL HEALTH EVIDENCE: A PRACTICAL guide TO RELIABILITy AND ExPERTS IN FAMILy LAW (ABA 2009). 20. greenberg & Shuman, supra note Am. Psych. Ass n, Guidelines for Child Custody Evaluations in Family Law Proceedings, 65 (9) AM. PSyCH (2010).

5 Analysis in Child-Custody-Evaluation Reports 39 B. The Recommendations Controversy The art and skill of communicating the results of the study in a written form is as important as how one carries out the evaluation and the understanding of family dynamics. There is little use in having these tools or knowing these dynamics if one cannot communicate them effectively, efficiently, and in a manner that is consistent with evidentiary requirements. Some of the literature in child custody evaluation has focused on report writing, primarily on the integration of data into the written report with an emphasis on what information to include in the report and the nature of the recommendations to be made. 22 With regard to the issue of recommendations, there is a small, but growing literature that debates whether or not recommendations can be competently offered at all. 23 There are those who argue that the proffered recommendations are a fundamental element of the evaluation report, whereas others argue that recommendations are a prediction and, therefore, should not be offered. 24 For example, it is argued that neither social science research nor individual child custody evaluators have ever shown an ability to offer accurate predictions of the future of children and families. While factors that point to positive and negative outcomes have been documented in research, it has not been demonstrated that these factors can accurately specify what will happen for a particular child or within a particular family. Those who argue that recommendations are best avoided assert that the fundamental value of custody evaluations is the presentation of the relevant family data, a comprehensive analysis of the data gathered, and the presentation of references to relevant divorce and child custody-related literature. III. The Importance of Analysis in Custody Evaluations Despite the growing literature in the broad domain of child custody evaluation and the evolution of evaluation guidelines and best practices, 25 there has been surprisingly little focus on the importance of the analysis in child custody evaluations. Analysis is the process of breaking 22. Stahl, supra note 3; Stahl & Simon, supra note 10. gould & Martindale supra note See, e.g., Timothy Tippins & Jeffrey Wittman, Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance, 43 FAM. CT. REV. 193 (2005); Thomas grisso, Commentary on Empirical and Ethical Problems with Custody Recommendations: What Now?, 43 FAM. CT. REV. 223 (2005); Lorraine Martin, To Recommend or Not Recommend: That Is Not the Question, 43 FAM. CT. REV. 246 (2005). 24. See, e.g., Special Issue on Recommendations in Child Custody Evaluations, 43 FAM. CT. REV. 2 (2005). 25. See, e.g., AM. PSyCH. ASS N, guidelines FOR CHILD CuSTODy EVALuATIONS IN DIVORCE PROCEEDINgS (2009); MODEL STANDARDS OF PRACTICE FOR CHILD CuSTODy EVALuATIONS (2006); SPECIALTy guidelines FOR FORENSIC PSyCHOLOgISTS (2011).

6 40 Family Law Quarterly, Volume 48, Number 1, Spring 2014 a complex topic, concept, or construct into smaller component parts for the purpose of gaining a better understanding of the complex topic, concept, or construct. In child custody evaluations, the overarching goal is to formulate a plan that is in the best interests of the child. In arriving at this goal, the evaluation assesses and describes various risk and protective factors present in the child s life. Analysis of best interests, then, would be done by way of cohesively describing the risk and protective factors present in each parent s home, describing the parental capacities of each parent, describing the child s needs and clearly laying out how these factors relate to meeting the needs of the child so that the child s best interests are fostered. This article focuses on the critical issue of the analysis and aims to fill in this missing piece of the literature, especially guiding the family law attorney as to what to look for when reading the completed custody evaluation. Based upon the experience of both authors in reviewing a wide variety of child custody reports, a typical structure for a child custody evaluation report is as follows: 1. Identification of litigant parents, children, and attorneys; 2. Identification of the case history; 3. Identification of the questions to be addressed (and hopefully answered) in the child custody evaluation; 4. Presentation of the data gathered with regard to parent one; 5. Presentation of the data gathered with regard to parent two; 6. Presentation of the data gathered with regard to child one (or two or more if there are multiple children); 7. Presentation of the data related to parent-child interaction observations; 8. Presentation of data gathered from collateral sources; and 9. Summary, conclusions, and recommendations. What is missing? By way of answering that question, a brief reverie. Remember when you were in elementary school learning mathematics? Remember how your goal, as a student, was to get the answer right? Remember how your teacher wanted you to get the answer right but the teacher also wanted to see how you got to the answer? Remember how frustrating it was that the number of points you got in response to any question on an exam also depended on showing your work and therefore the pathway that got you from the problem to the (presumably correct) answer? The component missing from the list above is a comprehensive and clear discussion of how the data were understood, parsed, and analyzed, and how this in turn leads to the conclusions reached. Attorneys often express frustration with child custody evaluations that

7 include a comprehensive discussion of the family dynamics, perhaps a good description of the strengths and weaknesses of each parent, and then the evaluator makes recommendations that seem to come out of thin air, even appearing to be contradicted by the data previously detailed in the report. Attorneys often seek a second opinion or help in understanding the basis for conclusions made in these types of evaluations. A. Defining Analysis in the Context of a Custody Evaluation Custody evaluations must include a comprehensive, understandable discussion not only of what data was used, but also of how the data was used and weighted in drawing the conclusions. What we are advocating for is a transparent, clear, and methodical discussion of how the data gathered during the course of the child custody evaluation intersect with the evaluator s opinion regarding the best interests of the child within the scope of the evaluation as ordered by the court. Instead of analysis of this nature, what is all too often seen in child custody evaluations are summary statements, such as, Based on the data, it is my professional opinion that... or The data indicate that.... Such statements may sound scholarly and professional but in reality, these kinds of conclusory statements are incomplete, and even potentially irresponsible. B. Why the Analysis Is Important While analysis is an important task for the evaluator, it is crucial for the court in making the best interest decision and for the attorneys for the parties, or child, to have this kind of narrative included in the evaluation report. Analysis helps the attorney understand the issues that were critical to the evaluator. The attorney also can see if the evaluator considered all of the relevant family data before making the recommendations and whether the evaluator considered all the possible proposed outcomes. Such an analysis can help the attorney and client decide whether to agree to the recommendations or whether to litigate. Perhaps the singular reason analysis is required is because analysis is legally required. An expert opinion is not just the opinion of someone qualified as an expert. An expert opinion is the opinion of someone qualified as an expert where there is a reliable basis for the opinion and where the opinion is fully demonstrated and conforms to the rules of evidence. 26 Federal Rules of Evidence 702(3) notes that an expert can testify if the witness has applied the principles and methods reliably to the facts of the case. 26. David A. Martindale, personal communication. Analysis in Child-Custody-Evaluation Reports 41

8 42 Family Law Quarterly, Volume 48, Number 1, Spring 2014 In the context of a child custody evaluation, the analysis is the process by which the evaluator reviews the accumulated data, revisits the multiple competing hypotheses that were proposed, and considered to explain phenomena of interest and in which the data are openly and systematically mapped to the various hypotheses. In turn, this leads to a favored hypothesis that is, ultimately, the evaluator s conclusion. By engaging in and demonstrating the analysis in the report, the evaluator demonstrates the inferential process and does so in a transparent manner. This process reveals the strengths and weaknesses of all hypotheses considered, including the hypotheses that led to the evaluator s conclusions. By openly showing the data that are both consistent and inconsistent with the favored hypotheses (the conclusions), the evaluator provides the court with vital information about the usefulness of the conclusions and how to weigh them in the context of the overall evidence in the matter. It also helps to demonstrate that the evaluator has openly and neutrally considered a range of possible outcomes, thereby working to control for bias, especially anchoring and confirmatory bias. 27 Another element of analysis has to do with a discussion of multiple potential outcomes. Why is this important? The answer is because the evaluator does not know exactly how the evaluation will be received and used. It is best when the evaluator considers the report as the equivalent of his or her direct testimony. Direct testimony is open-ended and allows the testifying expert to explore and explain all of the expert s thinking and how the data were considered and the conclusions reached. The evaluator cannot know when writing the report whether or not the expert s testimony will be required at trial. The evaluator also cannot know whether the court will endorse the recommendations made (if any) or whether the court may consider an alternative outcome. Because the evaluator cannot know to what extent information about the risks and benefits of an alternative outcome would be helpful to the court, we suggest that evaluators consider writing a comprehensive analysis that includes the presentation of more than one outcome scenario. The analysis should include a discussion of the risk and protective factors for the child associated with each 27. Anchoring bias and confirmatory bias are types of cognitive bias. Cognitive biases reflect inaccuracies and distortions in the evaluator s logical thinking about what data mean and in ascertaining the meaning of data. With anchoring, the evaluator will overly rely on certain information during the evaluation process at the expense of other information. Once the anchor is set, there is a risk that other information is interpreted in a way that is consistent with that anchored information. Confirmatory bias is the tendency for a custody evaluator, having formed an opinion or strong impression before completing all of the data gathering, to start looking for certain data or evidence that supports the opinion or impression that has formed. Then, data that is collected is seen through the evaluator s preconceived beliefs and used to support the preconceived opinion rather than the data being fully and neutrally evaluated.

9 Analysis in Child-Custody-Evaluation Reports 43 outcome scenario. For example, in a case in which a parent asks for additional parenting time with the children and the evaluator ultimately recommends that additional parenting time be apportioned to that parent, the evaluator would discuss the risk and protective factors associated with the recommended outcome as well as the risk and protective factors associated with the parenting time remaining the same as it currently is (or even more options, if indicated). Research on cognitive biases 28 reveals that clinicians and others are prone to distortions based on various cognitive biases and similar heuristics 29 that lead to speeding up the process of reaching conclusions and may affect decision-making. Child custody evaluations are complex, requiring the consideration of a large amount of data and the weighing of many factors before making recommendations and decisions. Absent a well-written analysis, it often appears as if the conclusions are the result of over-simplification and anchoring to particular data rather than a comprehensive analysis of all of the data. In such instances, attorneys have a difficult time encouraging their client to settle and often feel forced to take the evaluator s deposition solely to find out what the evaluator was thinking when reaching conclusions. 30 As an example, we often see relocation-related evaluations in which the evaluator shows no evidence that the evaluator has considered all of the relevant statutory or case law factors identified in the law 31 or other critical psychological-related factors, such as gatekeeping, 32 social capital, 33 and the child s temperament, to name a few. Then, when the evaluator recommends against the move and cites the risk of harm to the child s relationship with the nonmoving parent, it appears that the only basis for the conclusion is the evaluator s belief that both parents can remain 28. An in-depth focus on this topic is beyond the scope of this article but can be found in Stahl & Simon, supra note DANIEL KAHNEMAN, THINKINg FAST AND SLOW (FARRAR, STRAuS & giroux EDS., 2013) (defining heuristics as simple, efficient rules that describe how people make decisions or reach conclusions when faced with complex problems). 30. Although child custody evaluations are not conducted or designed to facilitate settlement, they are often used in this manner. Therefore, evaluators are wise to realize that reports are frequently used in this manner and to include as much information as possible that leads to their reaching certain conclusions and not reaching other conclusions so that the attorneys and the litigants are more likely to feel heard, understood, and to understand that their point of view was fully considered. 31. See, e.g., ARIZ. REV. STAT (2012); In re Marriage of LaMusga, 88 P.3d 81 (Cal. 2004). 32. William Austin, Linda Fieldstone, & Marsha Kline Pruett, Bench Book for Assessing Parental Gatekeeping in Parenting Disputes: Understanding the Dynamics of Gate Closing and Opening for the Best Interest of Children, 10 J. CHILD CuSTODy 1 (2013). 33. William Austin, Relocation, Research and Child Custody Disputes, in PARENTINg PLAN EVALuATIONS, supra note 16, at 540.

10 44 Family Law Quarterly, Volume 48, Number 1, Spring 2014 actively involved in the child s life if the parent requesting the move decides not to move. In this example, no relevant factors are considered, no risk-benefit analysis of primary mother-custody in her proposed location versus primary father-custody in his proposed location is evidenced, and no recognition of the complexity of relocation evaluations appears. This example might reflect an against the move bias. 34 Since the judge must consider relevant factors in reaching a decision, the evaluator must provide data to the court that is consistent with those factors. The analysis portion of the report is the place to integrate those factors and data. In one case, a custody evaluator went from summarizing family data to recommending primary custody to the mother in one location (moving the child from the temporary primary care of the father) without mentioning the basis for the conclusion. The evaluator did not mention any of the data that might support primary custody to the father in his, albeit different, location. The attorney receiving the report was quite upset because he was unable to determine the foundation for the recommendations. The attorney s consultant could not help much. While the report suggested risks and benefits to each custodial option, there was no discussion of those, nor of the risk and protective factors in either scenario or the potential multiple hypotheses or the inconsistent data. Worse yet, there was no mention of critical factors relevant to the court in a long-distance situation like this. Contrast that with the well-written evaluation report in which the evaluator writes an analysis that shows how he or she considered all of the data, including data that might not support the conclusions reached. Staying with the relocation example, the evaluator who writes a comprehensive analysis will identify each relevant factor. In identifying each relevant factor, the evaluator explains for the court whether or not the factor is a risk factor, i.e., that makes it more likely that the child s adjustment to the relocation will be more difficult, or a protective factor, i.e., that makes it more likely that the child s adjustment to the relocation will be less difficult. The evaluator will also identify the risks and benefits of primary mother-custody in her preferred location and the risks and benefits of primary father-custody in his preferred location. Finally, because the judge may or may not follow the recommendations of the evaluator, the well-written analysis will also include multiple sets of recommendations in the event the court gives different weight to certain factors and rules differently than the evaluator recommends. 34. Stahl & Simon, supra note 10.

11 Analysis in Child-Custody-Evaluation Reports 45 IV. The Risk/Benefit Analysis Complex child custody cases involve the potential for risk to children for a variety of reasons. Relocation cases involve risk. Other cases that involve the potential for risk include those with dynamics of high conflict or domestic violence, those with alienation dynamics where a child is refusing to see one of his/her parents, and those with disputes about overnights with young children, among others. 35 All of these types of cases require the evaluator to consider the risks and benefits of different custodial options. It is our position that the evaluator must perform a transparent analysis showing how he or she considered the risks and benefits of the various custodial options before making any recommendations. Additionally, except in long-distance situations, there are likely to be risks and benefits of primary-mother custody, primary father-custody, and shared custody, which may be equal or may just be substantial to each parent. In the analysis, the evaluator needs to identify the risks and benefits of each reasonably expected outcome for the court. In addition to parenting time, the decision-making paradigm between the parents must also be considered. Many high-conflict parents argue about nearly everything about their children s lives. For example, the mother wants the children to play soccer in her town, and the father wants the children to play soccer in his town. unfortunately, this dispute can result in the children not playing soccer anywhere. Other parents cannot or will not communicate in a civil manner. Their lack of communication can harm the child. An extreme example occurred when a child was taken by the mother to a pediatrician for a physical and was immunized. Just two weeks later, the father took the child to a different pediatrician for a physical, and the child was immunized again. 36 The parents failure to communicate resulted in potential harm to the child. In such a high-conflict situation, the evaluator will want to include in the analysis the risks and benefits of joint decision-making, primary decision-making to one parent or the other, or the use of a third party, such as a parenting coordinator, to assist in the decision-making. Finally, most evaluations have limitations, often caused by the inability to verify different elements of the disputes, the inability to determine which parent is more credible, or the inability to gather certain useful data. The AFCC Model Standards for Child Custody Evaluations states that evaluators have an obligation to identify the limitations in their evalua- 35. JANET JOHNSTON, VIVIENNE ROSEBy & KATHRyN KuEHNLE, IN THE NAME OF THE CHILD: A DEVELOPMENTAL APPROACH TO understanding AND HELPINg CHILDREN OF CONFLICTED AND VIOLENT DIVORCE (2d ed. 2009). 36. This occurred in a real case in Maricopa County, Arizona.

12 46 Family Law Quarterly, Volume 48, Number 1, Spring 2014 tions. 37 The best place to do so is in the Analysis section. Many evaluators omit this element from their reports, probably out of fear that by pointing out the weaknesses in their data set and work product they are setting themselves up for a rough cross-examination, licensing board complaint, and maybe a lawsuit. In reality, there is no such thing as a perfect report or a perfect data set. The evaluator who openly discloses the limitations of their work product is not only serving the court more fully, but also demonstrating professionalism and expertise. V. Putting It Together: Adding the Analysis Analysis is a crucial part of a child custody evaluation. The critical components in analysis include: (1) A discussion of the hypotheses proposed and how the data confirm/ disconfirm the hypotheses, (2) A discussion of the strengths and weaknesses present in each parent s home, (3) A description of the critical needs of the child and the capacities of the parents to meet these needs, and (4) How these lead to a specific set of recommendations. As discussed earlier, it is also helpful to include multiple outcome scenarios (for example, primary father versus primary mother versus shared custody). As an example, in one case involving nearly ten years of high conflict with a ten-year-old child, the parents, who lived about forty-five minutes apart, did not communicate with one another; blamed each other for nearly all of the child s problems; and had a history of allegations of domestic violence, alienation, and restrictive gatekeeping. The mother had primary physical custody. The father alleged that the mother often interfered with his parenting time (essentially every other weekend plus additional time in the summer and holidays). The father alleged that the mother made most decisions for the child, marginalizing him in the process. The mother denied this and stated that she made decisions because the father would not communicate with her, was demeaning and hostile when he did attempt to communicate. She indicated that she gave him the information and offered to get his input into major decisions. After conducting a comprehensive evaluation, the evaluator provided the following analysis, 38 which explained the evaluator s findings and thinking: Limitations to the findings: 37. MODEL STANDARDS, supra note Redacted excerpts from the report s analysis are included as examples. This was not the

13 Analysis in Child-Custody-Evaluation Reports 47 unfortunately, this evaluator never received a copy of the evaluation report completed by the Smith Pediatric group. Teacher indicated that the report identified that Jimmy had an unspecified learning disability, but without the report it s impossible to understand if Mother has followed through with any recommendations. Additionally, because I didn t have the name and phone number of the current tutor, I haven t followed up with her. At the request of the court, and if the parties get me that information, I d be happy to follow up and complete an addendum, if it would lead to any change in recommendations. Strengths and weaknesses of each parent: At the same time, however, they both do love Jimmy, and as noted above, each has some strengths and weaknesses as parents. Mother s strengths include the fact that she does support Jimmy s educational and social needs. She has gotten better at helping Jimmy get to/from school on time, and, per report, she has gotten him some tutoring to help him achieve at grade level in most academic areas. She seems to take care of his day-to-day needs reasonably well. Her weaknesses relate to the emotional areas of Jimmy s life. She tends to hover over him, speak for him, and at times (according to his teacher) do his homework for him. From this evaluator s observations, she appears to be emotionally enmeshed with Jimmy, making it difficult for Jimmy to separate and develop psychologically in an age-appropriate way. All of this makes it hard for Jimmy to understand and deal with his emotions and makes it hard for him to have his own, independent relationship with his father. When Mother worries about how Father treats Jimmy, and she projects that he will treat Jimmy as harshly as she thinks Father has treated her, it contributes to Jimmy s worrying about how his dad treats him and causes Jimmy to potentially misinterpret Father s actions in a negative light. This is quite problematic for Jimmy. As noted, Father also loves Jimmy, and Stepmother appears to be very warm and nurturing with Jimmy. Father s strengths as a parent include the fact that he supports and encourages Jimmy s play, socialization, and has expectations that Jimmy will act responsibly. It is both a strength and a weakness that Father encourages Jimmy to excel at things he tries. The strength lies in the fact that he encourages Jimmy, but it turns into a weakness when he gets too intense, when he entire analysis section, and details of the family were changed for privacy reasons. Recommendations are also not being included, as that is not relevant to this article.

14 48 Family Law Quarterly, Volume 48, Number 1, Spring 2014 demeans Jimmy if Jimmy hasn t excelled, and when he is disappointed in Jimmy s lack of enthusiasm for things that matter to Father (such as football). With Jimmy, it appears that Father is too driven. Just as Mother projects the worst of her feelings toward Father onto Jimmy, Father also projects the worst of his feelings toward Mother onto Jimmy. For example, he perceives that Mother doesn t push Jimmy to succeed at all, and as a result, he appears to be pushing Jimmy even harder, to compensate for what he believes Jimmy lacks as a result of Mother s parenting. Additionally, Father does get unpredictably angry at times, yells at times, and has a harsh voice at other times, which Jimmy always interprets as being grouchy and mean, even if it s not meant in that way. When they are having fun (on vacation, riding quads, playing in the yard, racing remote control vehicles, visiting Stepmother s family, etc.) there are no problems in their relationship, but when Father has an expectation that Jimmy function differently than he functions, Father pushes Jimmy in a way that Jimmy perceives is harsh. This is also quite problematic for Jimmy. The healthiest form of parenting occurs when a parent is authoritative, as opposed to authoritarian or permissive. Authoritative parents have structure, rules, provide guidance, and have reasonable expectations and at the same time are affectionate, sensitive to their child s emotions, flexible when children s needs require it, and are supportive of the child s relationship with the other parent. Neither Father nor Mother appears to be authoritative in their respective parenting style. unfortunately for Jimmy, their differences in parenting styles make it confusing and hard for him to know what to expect and contributes to his polarized style toward his parents (to be explained below). Father tends to be demanding, harsh, and lacks sensitivity to Jimmy s emotions. However, there is no evidence that he has been or would be abusive to Jimmy, even if Jimmy (and by extension Mother) sometimes feels that Father is being abusive. He does have structure and rules, but he tends to be more rigid and his expectations are often not realistic. He is clearly not supportive of Jimmy s relationship with his mother, except in the most superficial of ways. His style is more authoritarian. Mother tends to be emotionally sensitive but lacks the ability to help Jimmy separate. She merges her own feelings with his, she has a difficult time setting limits and providing clear expectations, and is easily emotionally overwhelmed herself. Similar to Father, she is clearly not supportive of Jimmy s relationship with his father, except in the most superficial of ways. Her style is more permissive and emotionally enmeshed.

15 Analysis in Child-Custody-Evaluation Reports 49 The child s functioning: Jimmy is anxious and worried, is sometimes afraid to be away from his mother because he senses her insecurities when he s not there. (This occurs at school as well as when he s with his father.) Jimmy doesn t understand his emotions and has a hard time expressing them. All too frequently, he appears to be sad or upset while at school, and Teacher reports that he regularly zones out and does not appear to be paying attention. Although he may have a secondary attention deficit problem, it appears to this evaluator that Jimmy gets overwhelmed with his emotions, and when that happens, he is at risk for shutting down. In school, this takes the form of zoning out and not paying attention, even forgetting if he s doing homework or classwork. It s unclear why he s having intense nightmares at times at his father s home, but hopefully that was a phase that is dissipating. It s important not to blame Father (or Father and Stepmother) for those nightmares since they only seem to happen at Father s house, but to recognize that they are symptomatic of the emotional struggles that Jimmy carries with him all the time. At the time of the last interview with Father and Stepmother, it appeared that they might be abating. Regardless of the continuation or termination of those nightmares, it s important to recognize that Jimmy is experiencing overwhelming sadness, anger, confusion, and insecurities that manifest in the behaviors described above. He is clearly in need of counseling to help him with these issues, and I will address that in the recommendations section below. A discussion of the risks and benefits of different parenting-time schedules and of decision-making: This leads to a risk/benefit analysis of various parenting-time and decision-making options. I will address these issues separately. Regarding parenting-time schedules, Father would like to be designated the primary parent, and Mother would like to keep the parenting plan essentially the same as it is now. Quite simply, there is no perfect solution. Maintaining the status quo doesn t solve Jimmy s need to mature and develop some emotional separation from Mother. It doesn t provide sufficient time for Jimmy to be with Father so that Jimmy can develop a more balanced view of his father. Switching the primary parenting to Father would require Jimmy to change schools for yet a fourth time, would cause Jimmy to miss and worry about his mother, and may make it hard for Jimmy when Father is harsh and unpredictably angry. I will make parenting-time recommendations

16 50 Family Law Quarterly, Volume 48, Number 1, Spring 2014 that take into account these issues, and it is this evaluator s opinion that gradually increasing Jimmy s time with his father is important, but only after certain prerequisites are in place. Father wants flexibility in the parenting plan, but given the nature of ongoing hostility between the parents and the history of very high conflict, there should be no change to the parenting plan developed by the court except in an emergency. As for decision-making, given the history of alleged domestic violence that has resulted in orders of protection, it is this evaluator s opinion that Mother should continue to have sole decision-making authority, at least for the time being. At the same time, there needs to be an opportunity for dialog and possible discussion about Jimmy and his functioning and his needs. Mother can t make unilateral decisions and act as if Father doesn t exist as a parent in Jimmy s life. Most importantly, she needs to recognize that Father is a parent, and include him in communication with the school, with the tutor, with extracurricular activities, and with Jimmy s counseling. The only way to make that happen is with help, and for that, I ll refer them for parenting coordination. Another statement of limitations associated with the recommendations: Although these factors, especially the history of primary care and the court s ongoing findings of domestic violence by Father, seem to imply that Mother should remain the primary parent and maintain sole decision-making authority, this evaluator is concerned enough about her parenting weaknesses and her ongoing unwillingness to provide even minimal information about Jimmy to Father that modifications to this will be recommended below. Finally, the court (and the parents) needs to be aware that any parenting plan is doomed to failure if the parents don t work to improve the issues outlined above; develop some level of parallel parenting with minimal communication; and sensitively encourage Jimmy to deal with his emotions, learn coping skills for dealing with his anxiety and worries, and perform better in school while helping him learn to focus and gain self-esteem and self-confidence. On the other hand, if Father and Mother learn to change their attitudes and behaviors, and support Jimmy s needs, things can improve for him. The recommendations below are designed to lead in that direction. The final portion of the analysis identified best-interests factors from statutory law and a discussion of the data relevant to each of those factors. For brevity, that portion of the report is not included in this article.

17 Analysis in Child-Custody-Evaluation Reports 51 VI. Conclusion Child custody evaluations are complex, intricate, multi-modal, and multi-factorial psycholegal work products. Courts order custody evaluations as an aid to judicial fact finding so that they may craft orders that maximize the likelihood of good outcomes for children. Attorneys who support the appointment of a child custody evaluation have a legitimate reason to expect that the evaluator will share his/her expert opinion, based on a reliable process and consideration of all of the data gathered, including data that does not support the evaluator s favored conclusions. It is the position of the authors that the recommendations offered to the court are not nearly as important or helpful as is the elucidation of the inferential and deliberative process that led to the conclusions, along with a discussion of factors in the case that create or minimize risk to the children. Because there are always multiple outcome scenarios in a given case, it is helpful for child custody evaluators to consider more than one outcome scenario and, in so doing, point to the pros and cons of each outcome scenario. The process by which conclusions are reached and the consideration of multiple outcomes with their associated strengths and weaknesses is, in the context of child custody evaluations, the process we are calling the analysis. It is the experience of the authors, both of whom are veteran evaluators and are frequently called upon to review the work products of other evaluators, that the absence of a clear and well-thought-out analysis is a weakness in a majority of custody evaluations. If custody evaluations are to be useful to courts and help attorneys decide whether to settle or litigate and remain a helpful and viable procedure when families bring custody disputes to the court, the incorporation of a thorough, systematic, and comprehensive analysis is an important and straightforward way to improve the quality of child custody evaluations.