Assessment of family custody issues using mental health evaluations: implications for mental health counselors.
Custody of children (Cases)
Dispute resolution (Law) (Research)
Patel, Samir H.
Jones, Karyn Dayle
|Publication:||Name: Journal of Mental Health Counseling Publisher: American Mental Health Counselors Association Audience: Professional Format: Magazine/Journal Subject: Health; Psychology and mental health Copyright: COPYRIGHT 2008 American Mental Health Counselors Association ISSN: 1040-2861|
|Issue:||Date: July, 2008 Source Volume: 30 Source Issue: 3|
|Topic:||Event Code: 200 Management dynamics; 980 Legal issues & crime; 310 Science & research Advertising Code: 94 Legal/Government Regulation Computer Subject: Company legal issue|
|Product:||Product Code: 9101221 Custody (Juvenile Law) NAICS Code: 92219 Other Justice, Public Order, and Safety Activities|
|Geographic:||Geographic Scope: United States Geographic Code: 1USA United States|
In the past 30 years high-conflict families seeking resolution of
child custody disputes have inundated family courts. Custody-related
evaluations conducted by mental health counselors provide family courts
with a thorough and unbiased assessment about the functionality of a
family and offer recommendations about custody issues. The authors
present (a) a description of mental health evaluations in child custody
disputes; (b) ethical considerations involved in the evaluation process;
(c) recommendations for conducting custody-related mental health
evaluations: and (d) a format for the written report.
Each year about 1.2 million marriages end in divorce, and many divorcing couples have children. In 2006 more than 1.1 million children (13.75%) were living with a parent who was divorced or separated (U.S. Census Bureau, 2007). Though most parents face the challenges associated with divorce or separation in a healthy and successful manner without high-conflict interactions (Johnston & Roseby, 1997; Wallerstein, Lewis, & Blakeslee, 2000), in about 10% of divorce cases involving children disagreement on custody and visitation arrangements leads to litigation (Luftman, Vetkamp, Clark, Lanncone, & Snooks, 2005). In these cases, it is often left to the court to make decisions about custody matters, and about 16% of child custody cases are referred to court-appointed mental health experts during the decision-making process (Bow & Quinnell, 2004).
"Mental health evaluations" in the child custody dispute resolution process (also called child custody assessments or custody evaluations) evaluate family functioning to help courts make decisions on custody and visitation (Schepard, 2005, p. 187). Historically, Ph.D. psychologists have performed most of these evaluations (Ramage & Barnard, 2005; Vandenberg, 2002), but as the demand for this assessment has grown in the last several years (Schepard, 2005), more professionals from a variety of disciplines and at all educational levels are now providing mental health evaluations in child custody cases (Martindale, 2007). In fact, Bow and Quinnell (2004) recently found that judges and attorneys referred 42% of cases to master's-level mental health professionals.
Little has yet been written about the role of the mental health counselor in mental health evaluations in child custody cases. A thorough review of the counseling journals yielded only one article on the topic in the last 20 years (see Remley & Miranti, 1991). This lack of attention in the counseling literature does not reflect the reality that more master's-level practitioners are serving as court-appointed evaluators (Martindale, 2007; Schepard, 2005). It may, however, be indicative of the belief that many mental health counselors lack formal training and may not be qualified to perform custody-related mental health evaluations (Martindale, 2007).
We believe that mental health counselors possess the knowledge and skills to be effective mental health evaluators in child custody disputes; however, counselors who provide these evaluations must be familiar with the guiding principles and standards that govern practice in this area. This includes not only the standards of the counseling profession (e.g., American Mental Health Counseling Association [AMHCA] and American Counseling Association [ACA]) but also standards and principles specific to evaluations in child custody cases. The purpose of this article is to provide an overview on conducting mental health evaluations in child custody disputes. Specifically, it presents (a) a description of custody-related mental health evaluations, (b) ethical considerations involved in the evaluation process, (c) recommendations for conducting mental health evaluations, and (d) a format for the written report.
MENTAL HEALTH EVALUATIONS IN CHILD CUSTODY DISPUTES
As family courts are inundated with divorcing families seeking to establish or alter child custody arrangements, it is essential that judges have information about the family that allows them to make decisions that promote the welfare and best interests of the child. Mental health evaluations used in child custody cases give family courts a thorough and unbiased assessment about the functionality of a family and the child's best interests (Gould & Martindale, 2007). Conducted by a neutral and impartial evaluator, custody-related evaluations involve gathering from interviews, observations, collateral information, and formal assessment instruments information related to both individual and family factors, such as parenting skills, parent-child interactions, and a myriad of issues associated with custody decisions (e.g., child abuse, substance abuse, mental health problems, domestic violence, and criminality). Most evaluations include recommendations for custodial or "primary residential" parent (i.e., the parent with whom the child resides more than 50 percent of the time) and visitation rights (Bow & Quinnell, 2004). Written reports document the evaluator's findings and recommendations, and evaluators testify in court.
Court-appointed mental health evaluations are relatively new in child custody disputes, a reaction to the demise of the "tender years" doctrine in the late 1970s (Schepard, 2005, p. 187). According to the tender years doctrine, the relationship between mother and child is responsible for the optimal emotional development of the child; thus, previously most custody decisions favored mothers. Today, each state in the United States requires that custody decisions be made according to the "best interest of the child," a standard that requires that judges make decisions about custody and visitation based on complex and unique issues related to the well-being of children (Elrod & Spector, 2004; Hall, Pulver, & Cooley, 1996; Rohman, Sales, & Lou, 1987).
Although state codes on child custody may vary somewhat, most are based in part on the custody section of the Uniform Marriage and Divorce Act (1979) and cover (a) the parents' wishes; (b) the child's wishes; (c) interactions and relationships between parents, children, and other significant persons; (d) the child's adjustment to home, school, and community; and (e) the mental and physical health of all individuals involved. States may also take into account other custody factors, such as a parent's ability to provide for the child, moral fitness, and other nonpsychological factors (Gould, 1998; Grisso, 2003).
The complexity of factors and circumstances to be considered in child custody disputes, unique in each case, is one reason judges appoint mental health professionals to aid in the decision process (Feller, Davidson, Hardin, & Horowitz, 1992; Schepard, 2005). Bow and Quinnell (2004) found that the three main reasons judges recommended a mental health evaluation were allegations of physical or sexual abuse or neglect, allegations that a parent was mentally unstable, and parental conflict. Courts value the assistance of mental health professionals in contested custody matters, especially their expertise in evaluating children's needs and family functioning, as a neutral source of information about what is in the child's best interest (Grisso, 2003; Schepard, 2005).
Although the use of formal assessment instruments is often a component of custody-related mental health evaluations (Ackerman, 2006), they are not mandatory (Association of Family and Conciliation Courts [AFCC], 2006), and concerns have been raised about whether they are appropriate in child custody cases (Emery, Otto, & O'Donohue, 2005; O'Donohue & Bradley, 1999; Tippins & Wittman, 2005). Psychological tests used in custody cases to predict parenting styles or behavior are often of questionable validity and reliability (Heinze & Grisso, 1996; O'Donohue & Bradley, 1999; Tippins & Wittman, 2005). There is no established association between traditional psychological test findings (MMPI-2, Rorschach, etc.) and different parenting styles or competencies; for example, a psychological test may support the conclusion that a parent displays serious obsessive-compulsive traits, but the test cannot confirm that these traits will affect parenting ability (Tippins & Wittman, 2005). Interestingly, Bow and Quinnell (2004) found that in child custody reports judges ranked psychological testing relatively low in importance, after strengths and weaknesses of parents, child information, and recommendations for custody and visitation. The use of psychological testing seems related to educational level and program of study, as evidenced by the finding of Horvath, Logan, and Walker (2002) that PhD. clinical/counseling psychologists were more likely than master's-level social workers to use psychological testing (71.4% of Ph.D. practitioners versus 12.5% of master's-level practitioners). Mental health counselors who choose to administer formal assessment instruments must be qualified to do so and must select instruments that meet the evidentiary demands of child custody cases.
Although historically Ph.D. psychologists conducted evaluations in child custody cases (Ramage & Barnard, 2005; Vandenberg, 2002), the numbers of mental health professionals at all educational levels who perform evaluations have increased in the last several years (Martindale, 2007; Schepard, 2005). To do so counselors must be familiar with and abide by the ethics and standards of practice associated with these specialized evaluations.
This section summarizes a few ethical issues drawn from relevant standards (see ACA, 2005; AMHCA, 2000; American Psychological Association [APA], 1994; AFCC, 2006), among them qualifications of the mental health evaluator, multiple methods of data collection, limits of confidentiality, ex parte communications, differentiating between counselor and evaluator roles, and avoiding multiple relationships.
Perhaps the most important ethical consideration involves the education, knowledge, training, and supervision qualifications of mental health counselors conducting custody-related evaluations. Besides having a master's degree in mental health counseling or a related field, evaluators need to be competent in a wide range of topics related to child custody, such as child development, psychopathology, interviewing techniques, and family systems (APA, 1994; AFCC, 2006). Mental health counselors must understand the law and local rules governing child custody in their jurisdiction. They must also understand the complexities of divorce or separation processes and common issues concerning children in custody disputes, such as parent-child relationships, blended families, parental alienation, domestic violence, substance abuse, and child abuse. It is recommended that for training in custody-related mental health evaluations, counselors seek out graduate courses, workshops, or conferences; counselors with less than two years experience conducting custody-related evaluations should seek supervision (AFCC, 2007).
To increase validity and objectivity, multiple methods should be used to collect data for mental health evaluations (APA, 1994; AFCC, 2006). Specifically, information should be collected from interviews, observations, and collateral materials, such as court records. Formal assessment instruments are not mandatory but may be used, depending on the professional qualifications of the mental health counselor and the appropriateness of the tests (e.g., validity, reliability) (AMHCA, 2000). Important facts and opinions obtained from interviews should be documented from at least two sources if their reliability is questionable; for example, accusations of domestic violence against one party should be followed up with, e.g., documentation of related criminal history (domestic violence, battery, assault, stalking). Collateral information is critical to the validity of the report (AFCC, 2006).
The usual rules of confidentiality do not apply: Mental health counselors need to communicate to all parties the limits of confidentiality in mental health evaluations related to custody matters (ACA, 2005; AMHCA, 2000; APA, 1994; AFCC, 2006). Information obtained during the evaluation is made available to the court and may be discoverable in future legal actions. Using age-appropriate language, counselors should inform children about these limits.
Because custody-related mental health evaluations are referred by the court, mental health counselors will at times have to communicate with legal representatives of the parties, but they must avoid ex parte communication. This is defined as oral or written off-the-record communication between the counselor and a party's attorney without the other party or attorney being present or having knowledge of the nature of the discussion. Ex parte communications in child custody cases are generally considered improper. Counselors need to minimize communications with legal representatives and avoid discussing substantive issues, limiting discussions to administrative or procedural matters, such as scheduling appointments (AFCC, 2006). Counselors should also refrain from relaying provisional custody recommendations to the parties or their attorneys. Recommendations should be disclosed only through the final written report.
Counselors conducting mental health evaluations for child custody cases need to differentiate between the counselor and the evaluator role (Luftman et al., 2005). In the counselor role mental health counselors form therapeutic relationships with clients, respond empathically, and use counseling interventions to help clients overcome their problems (Pickar, 2007). In the evaluator role they must remain neutral and detached to provide an unbiased and thorough evaluation of the family in order to help the court render a custody decision (Gould & Martindale, 2007). Evaluators who are overly empathic or employ interventions with clients take themselves out of their impartial role and compromise the objectivity of the evaluation (Pickar, 2007). Therefore, counselors do not engage in counseling or provide therapeutic intervention or advice during a mental health evaluation (AFCC, 2006). They may, however, use their therapeutic training and skill to establish rapport with parties and an environment conducive to eliciting self-disclosure from family members (Tippins & Whittman, 2005). If the counselor believes any of the parties would benefit from counseling, referral to another counselor or mental health professional is appropriate. Nor does the counselor make DSM-IV-TR diagnoses; if a mental disorder is suspected in any of the parties, a psychiatric or psychological evaluation to determine the diagnosis should be recommended.
Because distance and objectivity are necessary to accurately assess a family involved in a custody dispute, counselors must take reasonable steps to avoid multiple relationships with any party to the evaluation (ACA, 2005; APA, 1994; AFCC, 2006). They should not conduct custody-related mental health evaluations involving a current or former client or accept any parties to an evaluation as future counseling clients (APA, 1994). Although referrals for mental health evaluations can come from parents, attorneys, or judges, before an evaluation counselors need to secure a court order from the judge or a signed stipulation by the parents and their attorneys outlining the scope of the evaluation. The latter practice makes it clear that both parents/caregivers have agreed to the mental health evaluation and to the designated evaluator. This is critical in maintaining objectivity and avoiding any appearance of conflict of interest or bias toward one parent.
The Mental Health Evaluation Process
The mental health evaluation in child custody cases has three phases: referral from the court or attorneys; gathering information from interviews, observations, and collateral sources; and writing the report. This section describes the evaluation based not only on the literature (e.g., Ackerman, 2006; ACA, 2005; AMHCA, 2000; APA, 1994; AFCC, 2006; Grisso, 2003; Luftman et al., 2005; Pickar, 2007; Tippins & Wittman, 2005) but also on our professional experience either personally conducting or supervising counselors conducting about 75 mental health evaluations. In what follows we use the singular "child" for simplicity's sake.
Referral for Mental Health Evaluation: Mental health counselors first secure a court order from the judge or a signed stipulation by the parties and their attorneys outlining the scope of the evaluation.
Confidentiality and Informed Consent: Using an informed consent form, before conducting the evaluation the counselor makes all parties aware of the evaluation process. This ensures that all parties recognize that the normal guidelines of confidentiality may not apply because the final report will be submitted to the court.
Review of Court Documents: The counselor must review all court records and legal documents related to the family. Court records provide such pertinent information as financial affidavits, protective orders, and documentation about various court actions.
Interviews: The counselor interviews all parties associated with the case, including parents, children, stepparents, significant others, and grandparents. Other extended family members or friends identified as performing a significant caregiving role or residing with the child should also be interviewed.
We recommend that if possible the interviews take place in a neutral location (such as a professional office) with all parties (i.e., the primary caretakers and any other individuals that reside with the primary caretakers) meeting at the same time. This gives the counselor an opportunity to assess parent-child relationships with the child and each parent at the same neutral location. Counselors should review the consent form and the process of the mental health evaluation with both parents together. This gives the counselor an opportunity to observe the parents together and perhaps gain insight into their ability to interact.
Depending on the child's age, the child affected by the custody dispute should be interviewed separately. If more than one child is affected, they should also be interviewed together; this is helpful in assessing sibling relationships, something particularly relevant if placing siblings in different residences is a consideration (AFCC, 2006). In addition to the child affected by the custody dispute, other children (e.g., step-siblings, half-siblings) who reside in the same home should be interviewed to elicit other perceptions of the parent-child dynamics.
During interviews with parents and children, counselors should ask about parents' prior and current relationships with the child, their historical and current responsibility for caretaking, and their communication with the child about the divorce or attitudes toward the other parent (Gould & Martindale, 2007). Parents should be asked about their preferences for custody and visitation. Also, depending on the age of the child, counselors should ask about the child's view of his or her relationship with the parents and any significant others and the child's preferences for custodial parent, primary residence, and visitation.
After the interviews with parents and child, the counselors should interview grandparents, significant others, and extended family and friends. Additionally, we recommend interviewing the child at each parent's home during the home visit. Meeting the child multiple times makes it possible to build rapport and trust, so that the child may feel more comfortable in disclosing to the counselor pertinent, perhaps more threatening, information. The counselor may also need to interview collateral contacts associated with the family, which we discuss further below under "collateral information."
Observations: Counselors observe each child alone with each parent, although additional observations with the parent and all children involved can be useful in understanding family interaction. Observations can either be structured or unstructured. In structured observations the counselor provides a task for parent and child to accomplish, such as playing a board game, building something with blocks, or drawing (Ackerman, 2006). In unstructured observations the parent chooses the activity to engage in with the child; the counselor then observes how the parent handles unstructured activities. Counselors observe the interaction live either in the same room, using monitoring equipment (e.g., closed circuit television), or (with appropriate consent) using audiotape or videotape.
Home Visit: Visits at the homes of both parents and others with whom the child spends significant time provide valuable information about the home environment. In addition to interviewing the child at the home, counselors make note of the neighborhood, physical space (number of bedrooms and bathrooms), sleeping arrangements, cleanliness, and any safety hazards.
Collateral Information: Counselors obtain additional information from collateral contacts either through written (e.g., reports, letters) or oral means. Collateral information can be collected from relatives, neighbors, and other persons who have substantial contact with the family. If the child is of school age, at a minimum counselors need to collect and report on school progress reports for the last few years to assess the child's academic functioning and behavior. They may also wish to contact the child's teachers, school counselors, and coaches by phone or in person.
Other collateral information might be medical (e.g., pediatrician) and mental health records, guardian ad litem reports, and psychiatric or psychological evaluations. Criminal records should be obtained for each parent and all other adults and adolescents living within parental homes. Counselors should document any allegations of domestic violence, especially information about the first, the worst, and the last incidents of domestic violence; any exposure of the child to domestic violence; any court injunctions for protection (i.e., restraining order); and any criminal history related to domestic violence. They should also provide a brief summary of any social services investigations if there is suspected child abuse, including the findings and whether the parties complied with the agency's recommendations.
Formal Assessment Instruments: Although it is not necessary to use formal assessment instruments in custody-related mental health evaluations, counselors who choose to do so must be qualified to do so and must select instruments that meet the evidentiary demands of child custody cases. That means choosing tests the applicability of which to child custody decisions has been documented as reliable and valid (AFCC, 2006; Tippins & Wittman, 2005).
The Written Report Format
After information is obtained through interviews, observations, collateral information, and other sources, the counselor submits a written report to the court and to each parent or legal representative. The report should be free of spelling errors and grammatically correct, concise, and easy to read. Written reports are on average 21 pages long (Bow & Quinnell, 2001) and should cover the following areas (Luftman et al., 2005):
Reason for referral: A statement identifying the referral source, the parties (parents and children), and a brief explanation of why the family was referred for a mental health evaluation.
List of interviews: A list of all interviews and observations, including names, dates, and lengths of each.
List of collateral sources: A list of all collateral sources, including telephone contacts, documents reviewed, school records, etc.
Background information: For each parent or caregiver this section gives names, ages, present living situation, and family (i.e., family of origin), and educational, work, medical and mental health, relationship, substance abuse, and criminal history. It also gives information about relevant parent/child variables, e.g., parent-child relationship and interactions, parental responsibilities, and child's preferences.
Home visit: This section describes the home environment and the interactions or observations that occurred during home visits.
Collateral information: This section presents information collected from each collateral source.
Formal assessment instruments: This section contains the findings of any testing done.
Recommendations: This section should be easy to find; it may be placed at either the beginning or the end of the report (Luftman et al., 2005). It includes specific recommendations about custody: who is recommended as custodial or primary residential parent, and visitation for the nonresidential parent. The terminology used should be the terminology used in the jurisdiction.
This section should also include a brief discussion of the rationale for the recommendation that refers to information presented in the report. Counselors may reference factors associated with the "best interest of the child" standard for their state to support their recommendations. They are also encouraged to refer to peer-reviewed published research when developing their recommendations, giving full references at the end of the report. They may also make supplementary recommendations for further specialized evaluations or treatment for any parties to the health evaluation. The counselor signs the report after a statement certifying that the appropriate parties (judge, parents, attorneys) were sent a copy.
About 10% of divorcing families have disagreements about custody that are significant enough to lead to court involvement (Luftman et al., 2005). It is essential for judges to obtain unbiased information if they are to make decisions that are in the best interests of the child when parents cannot come to an accord about custody or visitation (Luftman et al., 2005). Mental health evaluations in child custody disputes give family courts an avenue to obtain a thorough assessment of how families before them function.
Counselors conducting mental health evaluations in custody cases need the knowledge, training, and supervision necessary to qualify them for the role. They need to understand the ethical considerations associated with mental health evaluations, including the data collection process, limits of confidentiality, ex parte communications, and multiple relationships. They must also understand the distinctions between the counselor and evaluator roles.
This article gives only a brief overview of custody-related mental health evaluations. It does not replace the need for specialized knowledge and training in the wide range of topics associated with divorce and custody disputes. We recommend that mental health counselors with no experience in carrying out evaluations seek out training opportunities and experienced supervision. Only qualified mental health counselors should engage in evaluations for custody cases so as to ensure competent and objective assessment of families and accurate recommendations.
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Samir Patel and Karyn Dayle Jones are affiliated with the Counselor Education Program, Department of Child, Family & Community Sciences, University of Central Florida. Correspondence concerning this article should be addressed to Samir H. Patel, M.A., College of Education, University of Central Florida, Orlando, Florida, 32816-1250. E-mail: firstname.lastname@example.org.
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