Legal Center:  Children & Divorce

THE CUSTODY EVALUATION PROCESS

by Michael Dishon, Ph.D.

In a previous article, I explained the legal context within which a custody evaluation is ordered or agreed to, how the evaluator is selected, and what how the evaluation is handled once it is received by the court. In this article, I will describe the custody evaluation process. 

However, before beginning, I would like to remind the reader that most parents, whether they have agreed to the evaluation or have been ordered to undergo the evaluation, arrive at the evaluation anxiously. They believe that they are being, so to speak, going to be put under the microscope to discover their flows and imperfections. 

Wanting to win the battle of, as they see it, being declared the "better parent" or "custodial parent," they tend to put their best foot forward, meaning that they as a group tend to try to appear in a good light, as being in control and as being concerned for their children. This is natural, and to be expected under the circumstances. However, as you will note when you continue to read, this is not what the evaluation is about.`

It is important to understand that the examiner's (I will refer to the evaluator as "examiner,") job is to learn as much as he or she can about the family, hoping to fulfill their obligation to the court. As indicated already, that obligation requires that the examiner make custody and visitation recommendations that will offer the child (or children) the greatest chance of fulfilling their "best interest." 

Since neither the law nor psychology have an exact definition of the "best interest," the evaluator needs to rely on the available research literature and arrive at the conditions that would provide the greatest chance the child will fare well. That means understanding the personalities of each family member, the web of relations that exists in the family, the particular needs of each child and the ways that each parent, through their parenting practices, either contributes or detracts from the child's successful long-term development. 

At the minimum, it is important to consider the physical, academic, social and emotional needs of the child. Rather then declaring a "winner," the issue is how to help a child grow into a successful human being, how to shield the child from the potential trauma of divorce, and how to satisfy the child's ongoing and shifting developmental needs. 

In my view, a successful human being is one in whom development in the intellectual, emotional, social and occupational spheres has been materialized. Clearly, each parent, because of their personality and style, will be able to contribute to the child's well being in a different way. The hope, then, is that between the two parents, the child will get his or her needs adequately met.

There is no such thing as a perfect parent, but there is such a thing as a "good enough" parent. Hopefully, the child has two "good enough" parents who are willing and able to put aside their own differences for the purpose of raising the child well.

A typical evaluation will proceed in several stages and over a period of time (typically one to three months, but sometimes longer and sometimes shorter). It is common, though not necessarily obligatory, that the evaluation process includes the following parts:

  1. Interviewing of each person
  2. Observation of parent-child interaction
  3. Psychological testing
  4. Interviews of third parties, such as family friends, teachers, and doctors.
  5. Review of reports and other available information, and
  6. Home visits.

In the paragraphs that follow, I will describe each of the above parts.

Interviews

The purpose of the interview is to collect background information, and to learn about the concerns of each person, and their desires. 

In the case of the parents, there will be discussion about the parent's feelings toward the child, the parent's view of how the child is doing and what special problems or needs the child might have. 

In the case of children, the interview will be used to learn first hand how the child is doing, and to obtain the child's attitudes and feelings about the rest of the family. 

In addition, the evaluator will focus on the child's adjustment to the divorce. If there are concerns about more complex issues, such as child abuse, the evaluator will ask questions designed to assess these concerns.

During the interview, you will be asked about your personal, marital, medical, and occupational history. You will also be asked about your involvement as a parent, your view of the children and your relationship with them. If the child has special medical or educational needs, this will be the opportunity to speak about it. In general, the examiner will ask you a number of questions, but if your concerns have not been discussed, make sure to bring them up.

Sometimes, your attorney, a friend or relative who has gone through a divorce, or a mental health professional to whom you were referred to by your attorney, will have "coached" you about the evaluation process. They may have told you what to say, and what to avoid. They may have told you how to respond to the interview questions, or to the psychological testing. 

As an evaluator my advice would be to discuss your concerns with the examiner at the beginning of the evaluation process, although your attorney may not be happy with this advice. I believe that if you do so you'll come out smelling better. The reason for this belief is that if you avoid some issue, it may come up unexpectedly, in the courtroom of all places, and diminish your credibility as a witness.

Parent-Child Observation

In an attempt to understand the parent-child relationship as well as the actual interactions between a parent and a child, it is common to have the parent-child dyad in the office with the examiner. Some examiners will ask the family members to play, while others may assign a task that they might do together, such as building something from Lego blocks. Still others might ask the family members to have a discussion about a certain topic which is relevant to them. This might be something like the problems that might exist around bed-time. The examiner will take notes about the interaction and sometimes even record the interaction with an audio or video tape, providing consent was given (or sometimes when it was ordered by the court).

Psychological Testing

The examiner is likely to administer some psychological tests, or in some cases refer the testing to another professional. The tests are designed to provide a comprehensive view of a person's

  1. Strengths and weaknesses
  2. Attitudes and beliefs
  3. Interpersonal behavior patterns
  4. Intellectual and cognitive capacities, and 
  5. Parenting skills, knowledge, and attitudes.

 Not all of the above categories will necessarily be assessed, with the decision being dependent on the particular family composition, special assessment needs (for instance, in trying to understand why a bright child might under perform in school) and the issues to be addressed in the evaluation report.

There are several categories of tests, including personality, ability tests and specialized tests. The personality tests include the often familiar MMPI (Minnesota Multiphasic Personality Inventory), and the Rorschach (sometimes referred to as the "inkblot test."). These tests are, however, different. The MMPI is a paper-and-pencil test, in which the subject (test-taker) is asked to answer "True" or "False" to a series of questions. The subject is asked to make a choice and is encouraged to answer all questions. The answers, coded on a sheet, are then fed to a computer, and analyzed. This results in a personality profile and personality description. In the Rorschach, the subject interacts with the test administrator. The administrator inquires about the inkblots and the person's responses are recorded for later analysis, typically by the test administrator. Again, the data codes generated can be fed to a computer, resulting in a report.

The reports generated by these computer programs are based on a comparison of the subject's scores with the pattern of scores of a number of groups of people. The computer makes the closest possible match to the numerous available profiles and generates the report based on that match and on deviations from the match. This is a statistical approach to determining what the person is like, which means that a given individual may vary from the prototype comparison profile.

While the MMPI and Rorschach are different tests, in certain areas of personality functioning, their results would ideally match. For instance, it is likely that if a person's MMPI profile matches that of a depressed person, that the Rorschach will produce the same result. This is important because it serves as a check for the validity of the findings. In the example above, this means, that if the two tests show the same results, the examiner can place greater confidence in the validity of the findings. Of course, these are not the only checks available to the examiner for the purpose of ascertaining the results. Sometimes, however, the tests show discrepant results and when that happens it is incumbent on the examiner to resolve the discrepancy, typically via the administration of additional tests or additional interviewing.

The Rorschach and MMPI are mentioned here because they are frequently administered for a custody evaluation. As mentioned, other tests may be necessary. Continuing with the example above, should the MMPI and Rorschach result be different, say with the MMPI showing depression and the Rorschach not, the examiner might administer a specialized depression test, hoping to resolve the discrepancy with a third test.

Many people, when they are faced with the testing situation, may become anxious and worry about what the tests may show. This is natural and is to be expected. While the tendency might be to second-guess the intent of the test and to respond accordingly, the tests are designed in a manner that will make that more difficult. The best policy, then, is for you to answer honestly, often using your first instinctual reaction to the question. That way, the examiner will get the most accurate picture of you.

According to the guidelines of the American Psychological Association, you, the test-takers, are entitled to feedback regarding the test results. Typically, this would be done face-to-face in the examiner's office. The examiner will explain the findings to you, and solicit your agreement or disagreement, based on your understanding of yourself. This, then can serve you as well as the examiner, because you are likely to learn something about yourself that you did not realize, and because it gives the examiner another opportunity to validate the findings.

Interviews of third parties, such as family friends, teachers, and doctors

Typically, when issues are in controversy, the parties to the dispute align themselves at the polar opposites of the issue. For this reason, the examiner will likely ask you to provide a list of people the examiner might talk to in the hope that these people could support your side. Besides the names of people provided by each side, the examiner will request the parents' permission to obtain information from and/or to speak to, say a doctor, a child's therapist, a teacher and so on. Of course, it is up to you, the parent, to decide whether to provide consent, and the examiner has to abide by these choices.

Review of reports and other available information
To obtain a more balanced view of the situation, the examiner will want to read other available information about the family, and its history, including medical history, and the children's performance in school and in other activities. Again, you will be asked to give your consent before the evaluator can obtain the records. Sometimes, though, the judge will order that certain records be provided to the examiner, in which case you are likely to have no option, unless you are willing to challenge the decision in a courtroom.

Home visits
Often, the examiner will set up a home visit. This is done to supplement the data obtained in the office and also to obtain data from a place that is more natural than the office for the family. Assuming the parents are physically separated, a visit will be scheduled to each home. The child will need to be present during the visit, so that his or her behavior can also be observed. That means that the scheduling of the visit might depend on the child's regular visitation hours.

During the visit, the child and parent may be involved in their normal activities, say to have dinner and prepare to go to bed, while being observed by the examiner. The evaluator also wants to do additional interviewing and in some cases make notes about the safety of the home (meaning whether it is sufficiently safe from accidents to the child), the space available to the child to play or do his homework in, and also note whether the house is tidy or not.

Once all the information from testing, interviews, observation and other sources is obtained, the examiner will weigh it in light of several parenting characteristics. What factors will be weighed may vary, but they are likely to include some, all, or more then the following:

  1. A Quality attachment, that is, whether there is a secure parent-child attachment which does not disrupt the child excessively upon a separation from the caretaker. Several authors have demonstrated that exposure of a child to rejecting, or ambivalent parents impedes his or her emotional and social development.

  2. Ability of the parents to perceive and respond to the needs of the child. Beyond a secure attachment, parents need to be attuned to the child's needs and then respond accordingly. Further, parents have to adjust their parenting in accordance with the shifting needs of the child.

  3. Freedom from Pressure. The child needs to feel free from the need to satisfy the parent's own needs. This would mean that the parent does not use the child for self gratification, does not smother the child, nor becomes disengaged excessively.

  4. Ability to transmit the values of the culture. This is not so much a value judgment as a practical concern. A child that is raised in a family with "fringe" values will be acculturated to the family but not to society at large. Clearly such a circumstance may burden the child unduly. Of course, one has to consider the special case of immigrant families who may uphold the "old values" while the child is struggling to adapt to a new school and peer environment. While immigrants' values may not reflect the local (North American) standards, their values may not necessarily be "deviant."

  5. Quality of relationship - rejection, overt or covert. Chronic or serious rejection tends to distort the child's development, while acceptance, support, love and understanding tend to promote it. While rejection can be easily detected when overt, when it is covered up with indulgence, or overprotection, detection becomes harder.

  6. Continuity of relationship. Continuity of care and of relationship are important for a number of reasons, not the least of which is that disruption of the continuity may increase the risk of attachment difficulties (see (1) above). This is particularly true in early infancy when dependency on the caretaker is at its highest.

These, then, are the major steps in a custody evaluation. Overall, it is a lengthy and complex process that is part of what the law calls "discovery." This term involves the act of obtaining and preparing legal evidence for trial, of which the custody evaluation is a part of. In this case, the evidence has to do with the well-being of all family members, their adjustment to divorce, and the degree to which the child's best interests in this particular family are likely to be fulfilled. 


Bio and more articles by Michael Dishon, Ph.D.