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AAML Child Custody Evaluation Standards
Family law advocates know where to turn for expertise in addressing economic controversies in divorces. Typically, lawyers seek expert advice with auditing financial records, valuing residential and commercial real estate, and actuarially determining the value of deferred assets like pension benefits. In many instances, the economic expert draws from accounting standards, real estate valuation standards and well-established actuarial standards. Some valuation determinations become controversial, with disputes over interpreting the data collected. Nonetheless, the valuation principles are usually well established in the particular financial field. Compare this with the guidance sought in child custody litigation when the courts consider input from custody evaluators. What are the standards for the custody expert? Do courts across the United States rely on established psychological standards? Now, the American Academy of Matrimonial Lawyers (AAML) has approved the Child Custody Evaluation Standards to provide the guidance that judges, attorneys and families across the country should embrace.
Background
In 2006, the AAML formed an interdisciplinary committee to develop standards for the courts, parties, counsel and mental health professionals for the preparation of uniform child custody evaluations. The committee drew on the knowledge of experienced family law attorneys: AAML Fellows from across the United States who have handled the full range of custody disputes, including serving as guardian ad litem. They were joined by nationally recognized forensic psychologists who have served families and the courts as custody evaluators for many years. The committee recognized that many large urban jurisdictions benefit from a wealth of mental health professionals who have the experience in child development and custody evaluation to assist the court if called on to work with a family and report to the court. Too often, however, jurisdictions with fewer resources ' or in any county in which an individual judge is unfamiliar with custody evaluation standards ' purported custody experts are allowed to testify without following appropriate psychological and legal standards. States need to require clearly outlined credentials and procedures for child custody experts. If the AAML Standards are accepted, they should be reflected in new legislation and court Rules to identify the best interests of children affected by divorce, custody litigation or dependency.
The Standards
The AAML Child Custody Evaluation Standards (“the AAML Standards”) draw from key psychological publications, including the Model Standards of Practice for Child Custody Evaluations prepared by the Association of Family and Conciliation Courts (AFCC), which were published in 2006, and the AFCC Guidelines for Brief Focused Assessment, developed in 2009. The committee considered the American Psychological Association (APA) Guidelines for Child Custody Evaluations in Divorce Proceedings, 2009, the APA Draft Guidelines for Evaluating Parental Responsibility, 2007 and the APA Ethical Principles of Code of Conduct for Psychologists with 2010 Amendments. The AAML Standards are not intended to supercede ethical precepts of psychological or legal professions, but rather provide guidance consistent with current ethical precepts. The 2006 AFCC Model Standards of Practice for Child Custody evaluation was used as a template and point of departure. The AAML Standards take the psychological guidance and organize it in a format to assist evaluators and courts to indentify the best practices in conducting a child custody evaluation for the benefit of children, parents and guardians ad litem.
The purpose of the AAML Standards are as stated here:
These Child Custody Evaluation Standards are designed to promote good practice; to provide information to those who utilize the services of custody evaluators; and to increase confidence in the work done by custody evaluators.
These Child Custody Evaluation Standards are designed in part to guide and assist custody evaluators, attorneys and the court in the performance of their duties. In disseminating these Standards, the goal of the American Academy of Matrimonial Lawyers is to contribute to the ongoing education of custody evaluators, attorneys and courts, thereby promoting good practice; to provide information to those who utilize the services of custody evaluators; and, to increase confidence in the work done by custody evaluators. Unless and until these Standards are incorporated into law, included in the rules of a court system, or adopted by a licensing board or similar regulatory authority, they do not have the force of law. Nonetheless, the development and adoption of these Standards by the AAML, can guide custody evaluators, attorneys, courts, and parties in the best practices to be utilized in custody evaluations.
What They Do
The AAML Standards highlight training, education and competency issues to help identify the appropriate credentials of a professional who seeks to report to the court as a child custody evaluator. Proposed custody evaluators with limited experience should enlist supervision from experienced evaluators before accepting responsibility as a court-approved evaluator. Education and training includes not only attaining appropriate degree(s), but also pursuing targeted study of topics about children, parenting and family dynamics. Training is expected in order to learn the role of the evaluator, proper procedures and how to issue balanced professional recommendation to the Court and parties. By following the AAML Standards, the proposed custody evaluator is in the best position to present her/himself as a specialist in the field.
The AAML Standards provide specific guidance for the evaluator's communication with litigants, attorneys and courts. In many custody proceedings, too often these boundaries are blurred. If the evaluator communicates with only one side, this will detract from the ability to remain unbiased or to avoid criticism for the appearance of impropriety. Clear communication policies need to be identified by the evaluator if not stated by the court. Parties must give the evaluator informed consent as to the evaluator's use of information collected, and as to contact with collateral sources. The best practice simply prohibits an evaluator's ex parte contact with attorney or court (barring extraordinary circumstances). An evaluator should seek to maintain independence throughout the collection of information and preparation of the custody evaluation.
The AAML Standards outline in detail the preferred Data Gathering practices for a child custody evaluation. The evaluator needs to establish the expected scope of a report, remain committed to accuracy, use diverse methods and outline a balanced approach to reach the recommendations. The AAML Standards identify reliable and valid methods and address assessment of parents, parenting figures, children and their interactions. They also address the importance of collateral source information and corroboration of key information upon which the evaluator seeks to rely. Corroboration is crucial when the primary family numbers give conflicting repots on the same event and a collateral source may provide consistent or a conflicting view of the event.
The AAML Standards consider the use of formal assessment instruments ' both the selection and the required training to administer and interpret results. In some cases, the use of data from previous assessments and reports or computer-generated reports should be treated with caution. Likewise, an assessment instrument should only be used for the purpose for which it has been validated.
An evaluator needs to remain objective, fair, balanced and independent. Therefore, under the AAML Standards, he or she will take steps to avoid multiple relationships, disclose potential conflicts and avoid therapeutic intervention. A record-keeping system needs to be established and maintained, with appropriate control to prevent loss or destruction of files. Once findings are presented, the basis for opinions and recommendations must be expressed. The evaluator will only express opinions that directly follow the court's order and the stated purpose of the evaluation. The proposed Model Order from the AAML Standards is on page 7 as Exhibit “A.”
The Importance of the Standards
Many busy, well-meaning child custody advocates are aware that the AFCC (and APA) have published standards and guidelines for child custody assessment. It is now helpful to have a practical, organized presentation of Standards from the AAML for use by lawyers and judges applying these psychological treatises to litigant involving children. The AAML Standards provide Appendices to cross-reference the AAML Standards with the AFCC Standards and Specialty Guidelines.
Conclusion
Mental health professionals who want to receive recognition as child custody evaluators find themselves competing with others who call themselves evaluators with few of the credentials recommended by the AFCC (or APA). If states adopt legislation and make rules that set high ethical and professional standards, the children and parties involved will be better served. Lawyers who rely on the AAML Standards can cite the report prepared by the national Academy of experienced family lawyers. The AAML Standards are organized, readable and based on sound professional and ethical principals for lawyers and mental health profession. At press time, publication was due in late 2011 or early 2012 in the AAML Journal, but they are currently on the AAML website, www.aaml.org. These AAML Standards should be embraced by lawyers and courts as providing guidance now. Hopefully those who write state laws and procedural rules will adopt the AAML Standards to be applied by all courts seeking to determine the best interests of the children involved.
ORDER OF COURT
AND NOW, this ____ day of _________________, 20__, it is hereby ORDERED, that:
The evaluator shall be ' _____________________ or ' will be selected by the parties.
The evaluator shall conduct a:
Physical Examination
Psychological Evaluation
Custody Evaluation
Drug and/or Alcohol Evaluation
Home Study
Other(specify)_________________________________________.
The evaluator ' shall ' shall not make specific recommendations for legal and physical custody. If the evaluator makes specific recommendations, the evaluator shall state the specific reasons for the recommendations.
The parties shall participate fully with the evaluator on a timely basis, including retaining the evaluator upon appropriate terms, scheduling appointments, paying promptly, participating in all sessions and in appropriate testing recommended by the evaluator and executing any reasonable consents relating to themselves and their children.
' The cost of the evaluation shall preliminarily be allocated between the parties with the plaintiff paying _____% and the defendant paying _____% without prejudice to the ultimate apportionment of such costs by subsequent agreement of the parties or Order of Court.
' The cost of the evaluation shall be borne by the county, subject to reimbursement by ____________________________________________.
The cost for the evaluator's time for depositions and/or testimony for hearing shall be ' allocated _____% to the plaintiff and _____% to the defendant or ' paid by the party seeking the testimony.
' The evaluator may consult with and/or interview any person the evaluator reasonably believes can provide relevant information, including other experts and/or fact witnesses. The parties, or either of them, will execute the appropriate consents or authorizations to facilitate this if requested to do so by the evaluator.
' The evaluator may utilize the services of another qualified professional (e.g., to perform additional services) without further Court approval, if he/she deems it necessary for the evaluation. The incremental cost, if any, shall be disclosed to the parties in advance of the services being employed.
' Subject to the applicable rules of evidence, the evaluator's file (including notes, exhibits, correspondence, test interpretations and, to the extent it is not a violation of copyright law or applicable professional rules, raw test data) shall promptly be made available to counsel for the parties.
' Provided that the parties cooperate on a timely basis, the evaluator shall deliver his or her report to ' counsel for the parties, ' any unrepresented party, ' the guardian ad litem, if any, and ' to the Court, at least ____ days prior to the first day of trial. The report shall not be filed of record.
' Prior to and/or subsequent to the submission of the evaluator's written report, counsel for the parties shall not be permitted to communicate with the evaluator as to substantive issues without the consent or direct participation of counsel for the other party.
'Subsequent to the submission of the evaluator's written report, counsel for the party calling the Evaluator as their expert witness shall be permitted to communicate with the evaluator as to substantive issues without the consent or direct participation of counsel for the other party.
If the report or any information from the evaluator is provided to the Court, the evaluator shall be subject to cross examination by all counsel and any unrepresented party regardless of who obtains or pays for the services of the evaluator.
The evaluator shall be provided with a copy of this Order.
The evaluator's report shall not be inappropriately disseminated, i.e., shall not be provided to non-party individuals, including the parties' children, without consent of the other party or leave of court. Dissemination to a party's therapist or to a therapist or counselor whose services are court ordered is permissible.
' Other provisions: ______________________________________
_______________________________________________________________.
FAILURE TO COMPLY WITH THE TERMS OF THIS ORDER MAY RESULT IN FINES, IMPRISONMENT OR OTHER SANCTIONS.
BY THE COURT:
___________________________________,
J.
Mary Cushing Doherty, a member of this newsletter's Board of Editors, is the Chair of the Family Law Department of High Swartz in Norristown, PA. She concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, visitation, custody, spousal support and maintenance, asset protection, complex property division, protection from abuse matters, and more.
Family law advocates know where to turn for expertise in addressing economic controversies in divorces. Typically, lawyers seek expert advice with auditing financial records, valuing residential and commercial real estate, and actuarially determining the value of deferred assets like pension benefits. In many instances, the economic expert draws from accounting standards, real estate valuation standards and well-established actuarial standards. Some valuation determinations become controversial, with disputes over interpreting the data collected. Nonetheless, the valuation principles are usually well established in the particular financial field. Compare this with the guidance sought in child custody litigation when the courts consider input from custody evaluators. What are the standards for the custody expert? Do courts across the United States rely on established psychological standards? Now, the American Academy of Matrimonial Lawyers (AAML) has approved the Child Custody Evaluation Standards to provide the guidance that judges, attorneys and families across the country should embrace.
Background
In 2006, the AAML formed an interdisciplinary committee to develop standards for the courts, parties, counsel and mental health professionals for the preparation of uniform child custody evaluations. The committee drew on the knowledge of experienced family law attorneys: AAML Fellows from across the United States who have handled the full range of custody disputes, including serving as guardian ad litem. They were joined by nationally recognized forensic psychologists who have served families and the courts as custody evaluators for many years. The committee recognized that many large urban jurisdictions benefit from a wealth of mental health professionals who have the experience in child development and custody evaluation to assist the court if called on to work with a family and report to the court. Too often, however, jurisdictions with fewer resources ' or in any county in which an individual judge is unfamiliar with custody evaluation standards ' purported custody experts are allowed to testify without following appropriate psychological and legal standards. States need to require clearly outlined credentials and procedures for child custody experts. If the AAML Standards are accepted, they should be reflected in new legislation and court Rules to identify the best interests of children affected by divorce, custody litigation or dependency.
The Standards
The AAML Child Custody Evaluation Standards (“the AAML Standards”) draw from key psychological publications, including the Model Standards of Practice for Child Custody Evaluations prepared by the Association of Family and Conciliation Courts (AFCC), which were published in 2006, and the AFCC Guidelines for Brief Focused Assessment, developed in 2009. The committee considered the American Psychological Association (APA) Guidelines for Child Custody Evaluations in Divorce Proceedings, 2009, the APA Draft Guidelines for Evaluating Parental Responsibility, 2007 and the APA Ethical Principles of Code of Conduct for Psychologists with 2010 Amendments. The AAML Standards are not intended to supercede ethical precepts of psychological or legal professions, but rather provide guidance consistent with current ethical precepts. The 2006 AFCC Model Standards of Practice for Child Custody evaluation was used as a template and point of departure. The AAML Standards take the psychological guidance and organize it in a format to assist evaluators and courts to indentify the best practices in conducting a child custody evaluation for the benefit of children, parents and guardians ad litem.
The purpose of the AAML Standards are as stated here:
These Child Custody Evaluation Standards are designed to promote good practice; to provide information to those who utilize the services of custody evaluators; and to increase confidence in the work done by custody evaluators.
These Child Custody Evaluation Standards are designed in part to guide and assist custody evaluators, attorneys and the court in the performance of their duties. In disseminating these Standards, the goal of the American Academy of Matrimonial Lawyers is to contribute to the ongoing education of custody evaluators, attorneys and courts, thereby promoting good practice; to provide information to those who utilize the services of custody evaluators; and, to increase confidence in the work done by custody evaluators. Unless and until these Standards are incorporated into law, included in the rules of a court system, or adopted by a licensing board or similar regulatory authority, they do not have the force of law. Nonetheless, the development and adoption of these Standards by the AAML, can guide custody evaluators, attorneys, courts, and parties in the best practices to be utilized in custody evaluations.
What They Do
The AAML Standards highlight training, education and competency issues to help identify the appropriate credentials of a professional who seeks to report to the court as a child custody evaluator. Proposed custody evaluators with limited experience should enlist supervision from experienced evaluators before accepting responsibility as a court-approved evaluator. Education and training includes not only attaining appropriate degree(s), but also pursuing targeted study of topics about children, parenting and family dynamics. Training is expected in order to learn the role of the evaluator, proper procedures and how to issue balanced professional recommendation to the Court and parties. By following the AAML Standards, the proposed custody evaluator is in the best position to present her/himself as a specialist in the field.
The AAML Standards provide specific guidance for the evaluator's communication with litigants, attorneys and courts. In many custody proceedings, too often these boundaries are blurred. If the evaluator communicates with only one side, this will detract from the ability to remain unbiased or to avoid criticism for the appearance of impropriety. Clear communication policies need to be identified by the evaluator if not stated by the court. Parties must give the evaluator informed consent as to the evaluator's use of information collected, and as to contact with collateral sources. The best practice simply prohibits an evaluator's ex parte contact with attorney or court (barring extraordinary circumstances). An evaluator should seek to maintain independence throughout the collection of information and preparation of the custody evaluation.
The AAML Standards outline in detail the preferred Data Gathering practices for a child custody evaluation. The evaluator needs to establish the expected scope of a report, remain committed to accuracy, use diverse methods and outline a balanced approach to reach the recommendations. The AAML Standards identify reliable and valid methods and address assessment of parents, parenting figures, children and their interactions. They also address the importance of collateral source information and corroboration of key information upon which the evaluator seeks to rely. Corroboration is crucial when the primary family numbers give conflicting repots on the same event and a collateral source may provide consistent or a conflicting view of the event.
The AAML Standards consider the use of formal assessment instruments ' both the selection and the required training to administer and interpret results. In some cases, the use of data from previous assessments and reports or computer-generated reports should be treated with caution. Likewise, an assessment instrument should only be used for the purpose for which it has been validated.
An evaluator needs to remain objective, fair, balanced and independent. Therefore, under the AAML Standards, he or she will take steps to avoid multiple relationships, disclose potential conflicts and avoid therapeutic intervention. A record-keeping system needs to be established and maintained, with appropriate control to prevent loss or destruction of files. Once findings are presented, the basis for opinions and recommendations must be expressed. The evaluator will only express opinions that directly follow the court's order and the stated purpose of the evaluation. The proposed Model Order from the AAML Standards is on page 7 as Exhibit “A.”
The Importance of the Standards
Many busy, well-meaning child custody advocates are aware that the AFCC (and APA) have published standards and guidelines for child custody assessment. It is now helpful to have a practical, organized presentation of Standards from the AAML for use by lawyers and judges applying these psychological treatises to litigant involving children. The AAML Standards provide Appendices to cross-reference the AAML Standards with the AFCC Standards and Specialty Guidelines.
Conclusion
Mental health professionals who want to receive recognition as child custody evaluators find themselves competing with others who call themselves evaluators with few of the credentials recommended by the AFCC (or APA). If states adopt legislation and make rules that set high ethical and professional standards, the children and parties involved will be better served. Lawyers who rely on the AAML Standards can cite the report prepared by the national Academy of experienced family lawyers. The AAML Standards are organized, readable and based on sound professional and ethical principals for lawyers and mental health profession. At press time, publication was due in late 2011 or early 2012 in the AAML Journal, but they are currently on the AAML website, www.aaml.org. These AAML Standards should be embraced by lawyers and courts as providing guidance now. Hopefully those who write state laws and procedural rules will adopt the AAML Standards to be applied by all courts seeking to determine the best interests of the children involved.
ORDER OF COURT
AND NOW, this ____ day of _________________, 20__, it is hereby ORDERED, that:
The evaluator shall be ' _____________________ or ' will be selected by the parties.
The evaluator shall conduct a:
Physical Examination
Psychological Evaluation
Custody Evaluation
Drug and/or Alcohol Evaluation
Home Study
Other(specify)_________________________________________.
The evaluator ' shall ' shall not make specific recommendations for legal and physical custody. If the evaluator makes specific recommendations, the evaluator shall state the specific reasons for the recommendations.
The parties shall participate fully with the evaluator on a timely basis, including retaining the evaluator upon appropriate terms, scheduling appointments, paying promptly, participating in all sessions and in appropriate testing recommended by the evaluator and executing any reasonable consents relating to themselves and their children.
' The cost of the evaluation shall preliminarily be allocated between the parties with the plaintiff paying _____% and the defendant paying _____% without prejudice to the ultimate apportionment of such costs by subsequent agreement of the parties or Order of Court.
' The cost of the evaluation shall be borne by the county, subject to reimbursement by ____________________________________________.
The cost for the evaluator's time for depositions and/or testimony for hearing shall be ' allocated _____% to the plaintiff and _____% to the defendant or ' paid by the party seeking the testimony.
' The evaluator may consult with and/or interview any person the evaluator reasonably believes can provide relevant information, including other experts and/or fact witnesses. The parties, or either of them, will execute the appropriate consents or authorizations to facilitate this if requested to do so by the evaluator.
' The evaluator may utilize the services of another qualified professional (e.g., to perform additional services) without further Court approval, if he/she deems it necessary for the evaluation. The incremental cost, if any, shall be disclosed to the parties in advance of the services being employed.
' Subject to the applicable rules of evidence, the evaluator's file (including notes, exhibits, correspondence, test interpretations and, to the extent it is not a violation of copyright law or applicable professional rules, raw test data) shall promptly be made available to counsel for the parties.
' Provided that the parties cooperate on a timely basis, the evaluator shall deliver his or her report to ' counsel for the parties, ' any unrepresented party, ' the guardian ad litem, if any, and ' to the Court, at least ____ days prior to the first day of trial. The report shall not be filed of record.
' Prior to and/or subsequent to the submission of the evaluator's written report, counsel for the parties shall not be permitted to communicate with the evaluator as to substantive issues without the consent or direct participation of counsel for the other party.
'Subsequent to the submission of the evaluator's written report, counsel for the party calling the Evaluator as their expert witness shall be permitted to communicate with the evaluator as to substantive issues without the consent or direct participation of counsel for the other party.
If the report or any information from the evaluator is provided to the Court, the evaluator shall be subject to cross examination by all counsel and any unrepresented party regardless of who obtains or pays for the services of the evaluator.
The evaluator shall be provided with a copy of this Order.
The evaluator's report shall not be inappropriately disseminated, i.e., shall not be provided to non-party individuals, including the parties' children, without consent of the other party or leave of court. Dissemination to a party's therapist or to a therapist or counselor whose services are court ordered is permissible.
' Other provisions: ______________________________________
_______________________________________________________________.
FAILURE TO COMPLY WITH THE TERMS OF THIS ORDER MAY RESULT IN FINES, IMPRISONMENT OR OTHER SANCTIONS.
BY THE COURT:
___________________________________,
J.
Mary Cushing Doherty, a member of this newsletter's Board of Editors, is the Chair of the Family Law Department of
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