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Psychological Evaluations in Family Court by Edward S. Sczechowicz, Jr., Ph.D.

In many cases in Family Court psychological evaluations provide an essential role. The primary purpose of the evaluation in a Family Court context is to provide information to the court and the family about the best psychological interest of the child or children. Divorce affects a great number of children in the United States, more than one million annually, an estimated forty percent of these divorces occurring before the child is 18 years of age. When parents divorce with minor children decisions need to be made about a timesharing schedule. Obviously society recognizes it has an interest in these arrangements, as evidenced by the existence of Family Court. Most decisions regarding timesharing schedules are derived without the input of professionals, although some parents ending their relationship will seek the input of mental health professionals, pediatricians, attorneys and clergy to work out an agreeable arrangement. In about ten percent of cases parents initiate litigation because they are unable to agree on a timesharing schedule. The subsequent legal process, including hearings, mediation and communications between attorneys is able to resolve most of these disputes. Approximately one percent of timesharing decisions are the result of trials (Melton et al., 1997). Although judges are experts in the complexities of the law and legal process, they are often not as well trained in the developmental needs of children and family dynamics. Judges will often look to the mental health expert to assist the court in understanding complex psychological issues such as parental fitness, psychological attachment, sibling relationships, the developmental needs of the child(ren) and balance this with the legal facts and principles by which they are able to make decisions (Stahl, 1994). In addition to these issues there may be other concerns of the court, such as substance abuse, domestic violence, and child abuse and neglect. They psychologist is often viewed as the individual who can assist the court in understanding these issues, how they affect parenting, and how they can best be addressed through therapeutic interventions. Because families are very complex dynamic systems, it is important for the psychological evaluator to present to the court, in an understandable way, how these issues may impact the child. Because of their unique role, psychologists can often discover issues that the court did not know existed.

In 2004, Bow and Quinnell surveyed attorneys and judges to determine the reason for ordering psychological evaluations, the most important components of such an evaluation, and their major complaints. The attorneys and judges who responded indicated their top reasons for evaluations in Family Court were parental conflict, mental instability, allegations of physical or sexual abuse, and alcohol abuse. The attorneys and judges felt the most important components of such an evaluation were, in order, discussion of the strengths and weaknesses of the parents, child information drawn from history and interview data, and recommendations for timesharing. Least important were the list of documents reviewed, family and parental histories, psychological testing of the child, and recommendations for other services such as parenting classes. The number one complaint of the legal professionals about the use of psychological evaluations was the length of time taken to complete the evaluation. Other issues that were noted were the evaluator’s lack of objectivity, lack of knowledge of the criteria, and conclusions lacking supporting data. In a prior survey by these researcher in 2001 (Bow and Quinnell), the principle complaint of attorneys and judges was noted to be the length of time it takes psychologists to complete a report, judges believing such reports should take five to six weeks. The attorneys indicated the optimal length of such a report should be twelve pages and the judges indicated 10 pages. These researchers also noted that the average length of time it takes psychologists to complete reports from Family Court is nine weeks, with the most commonly reported times being six, eight and twelve weeks. They psychological evaluators also stated the average length of the report was twenty one pages with a range of forty to eighty pages.

The American Psychological Association (APA) (which continues to use the term “child custody” as a shorthand) states “The primary purpose of the evaluation is to assess the best psychological interest of the child.” The difficulty with the best interest of the child standard is that there does not appear to be an agreed upon definition. Although there are obviously some clear cut guidelines, such as children should not be subject to abuse, there is no accepted agreement as to what should be the primary concerns when assessing the best interests of the child. For example, should the child’s happiness be determined to be paramount, or the child’s economic productivity when they grow up? Does exposure to warm interpersonal relationships take precedence over discipline and self-sacrifice? Is stability and security more desirable than intellectual stimulation? Weighing these factors and many more are a challenge for psychologists and the court.

Psychologists are prohibited from making recommendations regarding timesharing schedules unless all members of the family have been evaluated. Exceptions are made in the area of risk managements. For example, if there is evidence a parent has been abusing a child, it is permissible for the psychologist to make recommendations regarding timesharing in order to minimize risk to the minor child. When making recommendations regarding timesharing, the psychologist will attempt to evaluate both parents and the minor child(ren). It is apparent that very young children cannot be psychologically evaluated. Typically, in regards to timesharing recommendations, the child(ren) will be observed interacting with their parents. This provides information regarding parenting styles as well as attachment. In addition, psychologists conducting evaluations for Family Court will typically review collateral documents. Often these are extensive, at times being thousands of pages. Although they typically include legal documents, many times they will often include text messages and emails between the parents, supervised visitation reports, treatment records, criminal records, and a host of other miscellaneous documents. An integral part of any psychological evaluation is the psychological testing. Often the mistaken belief is that the psychological evaluation is no more than a recitation of the results of the psychological testing. In actuality, psychologists formulating a report engage in a process called convergent validity. This process entails reviewing all the data submitted, including the clinical interview, mental status exam, psychological testing, collateral contacts, and the collateral documents, and formulating hypotheses based upon the data collected. The psychologist then attempts to determine where these data points converge, which will lead to conclusions and recommendations. It is important to note that psychological evaluations are based upon science and not the personal biases and opinions of the individual evaluator. It is also important for Psychologists, subsequent to determining an individual to have psychological problems, to determine whether there is a nexus between those difficulties and the effect upon the child. An example of this is depression. Approximately forty percent of all adults in the United States will at some point meet the diagnostic criteria for depression. Certainly the presence of a depressive disorder therefore cannot be determinant as to whether an individual can parent. Rather, the behavioral manifestations of the depression would need to be such that it would affect the parent-child relationship.

Psychological testing done by psychologists attempts to determine personality styles and parenting abilities and beliefs. They attempt to explain in an understandable fashion how this may explain an individual’s behavior, how it may positively or negatively affect the minor child(ren) and if need be, how they may be addressed in a therapeutic manner. Psychological evaluations in Family Court also attempt to determine the ability of parents to coparent and how best to address any deficiencies.

The American Psychological Association (APA) has guidelines for psychologists conducting child custody evaluations. Of note, these guidelines include psychologists striving to function as impartial evaluators. In this regard APA notes “The volatility of the situation (child custody evaluations) is often exacerbated by a growing realization that there may be no resolution that will completely satisfy every person involved. In this contentious atmosphere, it is crucial that evaluators remain as free as possible of unwarranted bias or partiality.” The APA guidelines indicate psychologists should not evaluate individuals whom they have or are presently treating. Although requiring the examination of all parties to a child custody dispute, APA recognizes there are case when only one individual is psychologically evaluated. In such a case, according the ethical guidelines “Psychologists refrain from comparing the parents or offering opinions or recommendations about the apportionment of decision making, care taking, or access. Nonexamining psychologists also may share with the court their general expertise on issues related to child custody as long as they refrain from relating their conclusions to specific parties in the case at hand.”