When Custody Evaluators Lose Focus

Consider that which follows, taken from the transcript of an evaluator's deposition. In the midst of a lengthy evaluation, an evaluator has taken steps intended to transform children who interact poorly with their father into children who will “behave, be lovely children ' [and be] respectful and courteous” when with their father. The evaluator describes her intervention as an “effort in a therapeutic-type basis ' ” and adds: “ I'm trying to improve the circumstances between the children and their father ' .” The evaluator's effort to improve the interpersonal dynamics between the children and their father compromises her ability to perform the task that was accepted.

Loss of focus by evaluators can be seen in the data-gathering process, during the process of data integration and opinion formulation, and in the generation of recommendations.

Data Gathering

Don't Know Much About History

The question to be asked (and correctly answered) is: How important is a litigant's personal history in the context of a custody evaluation? Historical information is not inconsequential; however, the information that is most germane is that which describes the history of the child as s/he has developed within the context of the family. Also pertinent is information bearing upon the following: 1) each parent's individual history as a caregiver; 2) the shared history of the parents as partners in the child-rearing process; 3) the manner in which parents have communicated in discussions concerning their children; and 4) what each parent has done, is motivated to do, is available to do, and is able to do for and with the children for whom a parenting plan is being constructed. Historical information bearing upon such issues as the parents' respective sexual needs, relationships with in-laws, finances, or leisure activities is not.

Many evaluators gather (and pass along in their reports) historical information the relevance of which is questionable. Three very mildly altered examples follow.

1. Sally grew up in Smallville, where her mother was a sheep herder and her father was a carpenter. In 1957, Sally and her parents moved into a two-family home owned by a 65-year-old widow by the name of Irma. The family lived in Irma's home throughout Sally's high school years. While in high school, Sally belonged to the chess club and was the lead javelin thrower on the school's track team. Assisting the trier of fact who is presiding over Sally's custody dispute does not require that the evaluator's report include the name and age of the landlady who owned Sally's childhood home.

2. Ann's mother is now employed by a traveling circus, as a trapeze artist, and her father is employed by the same circus as a rigger. The fact that Ann's parents are employed by a traveling circus is pertinent only within the context of a brief discussion of the proximity of extended family or an analysis of the availability of the maternal grandparents to provide back-up child care.

3. During their courtship, the Smiths spent their time together going to Broadway plays, attending sporting events, and swimming at a local beach during the summer. During the early months of 2011, though the Smiths continued to sleep together, there was no sexual intimacy. There is no discernible connection between the information imparted in the foregoing two sentences and the issue before the court, i.e., the relative parenting strengths and deficiencies of the Smiths.

Is My Parenting the Inalterable Product of My Upbringing?

In describing the upbringing of a parent, an evaluator writes: His mother was abusive and controlling. As a direct result, Mr. Smith has become a parent who exercises no control over the children and refuses to dispense discipline, even when doing so is clearly warranted. It is likely that somewhere, in some evaluator's file, there is a report in which we would find: His mother was abusive and controlling. We should not be surprised, therefore, that Mr. Smith is abusive and controlling. There is no immutable link between our childhood experiences and our parenting characteristics as adults. Page after page of information concerning the childhood of each parent is a distraction.

Information-Gathering for Dummies

Many evaluators use structured questionnaires as a means by which to gather data. Though there is no reason to avoid the use of questionnaires, some evaluators cut and paste litigant statements, taken from questionnaires, directly into their reports, failing to investigate the accuracy of statements made. Evaluators who place significant emphasis on information that has been provided in the form of responses to inquiries on questionnaires explain this practice by pointing to the fact that the questions posed to one litigant are identical to those posed to the other litigant. First, the advantages of uniformity of process can be over-rated. Often, areas that require exploration in interviews with one parent do not require exploration in interviews with the other parent. Second, on many questionnaires, the physical space allotted is insufficient, forcing litigants to offer information that is simply incomplete. Third, many evaluators who ask that litigants complete questionnaires permit the litigants to complete the questionnaires in environments in which assistance may be readily available. Finally, many evaluators who utilize questionnaires fail to pose follow-up questions of the type that would likely be posed in face-to-face interviews.

Exploring Marital Issues

Some evaluators employ a data gathering method advanced by Benjamin and Gollan and referred to as “allegation-focused” (Family evaluation in custody litigation: Reducing risks of ethical infractions and malpractice. Washington, DC: American Psychological Association, 2003). When employing this method, the allegations upon which evaluators focus include “divorce-related allegations.” The allegations to be explored are not limited to those that are relevant to parenting.

In 2007, Benjamin and Gollan, with a third author (Glenn Ally), offered amplification. They wrote: “By delineating each of the allegations during the evaluation and by providing repeated opportunities to clarify each allegation, the language of the parties can be used to create an ideographic narrative that represents the characteristics of the parties operationally” (p. 105). (Family evaluation in custody litigation: Reducing risks of ethical infractions and malpractice. J Forensic Psychology Practice, 7(3), 101-111). Notably absent is an articulation of the basis for the authors' view that an examination of divorce-related (as opposed to parenting-related) allegations generates information that is useful to judges who are endeavoring to construct parenting plans.

How Can You Go Wrong Focusing on the Numbers?

Once-attorney/now-judge Dianna Gould-Saltman has opined that attorneys like tests because they “break things down to numbers, and we understand numbers” (p. 72). (Gould-Saltman, D. (2005). Testing, one, two, three, testing: An attorney perspective. J Child Custody, 2(1), 71-81.) I respectfully disagree with Gould-Saltman's assertion that “we understand numbers.” We think we understand numbers, and the baseless notion that numbers can be counted on to contribute clarity and objectivity to an otherwise murky process leads many evaluators, attorneys, litigants, and judges to attach to test scores far more weight than is appropriate.

Counting the Ballots

An evaluator writes: Eighteen letters were submitted by individuals supporting Mrs. Popular's bid for sole custody of Prize. Only seven such letters were submitted in support of Mr. Popular. Collateral sources are supposed to be utilized as a means by which to obtain information, and the focus of an evaluator's attention should be on the relevance of, verifiability of, and added information provided by the collateral source. The courts are not overseeing popularity contests and, if they were, counting letters of endorsement could be accomplished as easily by court personnel as by mental health professionals, and at a substantially lower cost.

And May the Good Spouse Win

In reviewing the contemporaneously taken notes of evaluators (which is standard practice in 49 of our 50 states), it is not at all uncommon to find that more time was expended gathering information concerning marital interactions and issues than in gathering information relating to parent-child dynamics and issues. It is not the task of an evaluator to formulate opinions bearing upon which of the two litigants was the better spouse during the course of their marriage. A fictitious philosopher once observed: “That which we gather, we must use.” It is not surprising, therefore, that evaluators who gather voluminous information relating to marital issues subsequently utilize the accumulated information in formulating opinions concerning the parenting strengths and deficiencies of the two litigants.

Data Integration and Opinion Formulation

Name That Condition

The AFCC's Model Standards urges evaluators to:

recognize that the use of diagnostic labels can divert attention from the focus of the evaluation (namely, the functional abilities of the litigants whose disputes are before the court) and that such labels are often more prejudicial than probative. For these reasons, evaluators shall give careful consideration to the inclusion of diagnostic labels in their reports. In evaluating a litigant, where significant deficiencies are noted, evaluators shall specify the manner in which the noted deficiencies bear upon the issues before the court.

The American Psychological Association's recently adopted Specialty Guidelines for Forensic Psychology encourages forensic examiners to “provide information that is most relevant to the psycho-legal issue [and, more specifically,] to consider the problems that may arise by using a clinical diagnosis in some forensic contexts ' .” Evaluators are far more helpful to those who seek their advisory input when the evaluators identify specific attitudes, motivations, and behavior patterns that are linked directly to parenting and articulate with reasonable precision how the identified attitudes, motivations, and behaviors are linked to parenting effectiveness (or ineffectiveness).

Adultery ' Under Extenuating Circumstances

Consider one evaluator's perspective on the role of family history as a mitigating factor in a father's glaringly public adulterous relationship. Mr. and Mrs. Jones have two children. Mr. and Mrs. Smith have three children. The Jones and the Smith children attend the same school. Mr. Jones and Mrs. Smith commence an atypically overt adulterous relationship, which continues unabated throughout the course of a custody evaluation being conducted in connection with the Jones's divorce. In offering commentary, the evaluator writes: “In order to understand Mr. Jones's behavior, it must be seen in a broader perspective. Throughout his life, Mr. Jones has borne the burden of trying to meet expectations communicated to him by his parents. At 45, it was long past time for him to individuate and break free of parental control. His adulterous relationship was undoubtedly his way of letting his parents know that he was now his own person.” Noteworthy for its absence is any opinion concerning the particular method chosen by Mr. Jones as a means by which to “break free of parental control” or what his decision might suggest about his ability to subordinate his own needs to those of his children.

Children Often Prefer Permissiveness

In many jurisdictions, consideration is given to the articulated preferences of children with regard to custodial placement and visitation. Some evaluators appear to accept children's statements in much the same way that one might collect ballots. Maintenance of focus on children's best interests is not facilitated by recording which parent with whom they say they would prefer to reside and passing that information along without comment. As suggested in other portions of this article, the simple stuff requires no expertise. Writing down what children say requires stenographic skills, not education, training, and experience in one of the mental health disciplines. Expertise comes into play when evaluators, in addition to noting children's chronological ages, evaluate their emotional and social maturity, their cognitive development, their capacity for contemplating the long-term implications of their choices, the logic that underlies their expressed preferences, and their possible exposure to subtle coercion by a parent.

This section was begun with the heading, “children often prefer permissiveness,” because, in some cases, evaluator explorations into children's preferences are so superficial that even such obvious problems as children's frequent preferences for parents who are permissive and who place no age-appropriate demands upon them go undetected. (Example: An evaluator, in explaining the basis for his decision to attach great weight to the expressed preference of an 11-year-old child, alludes to the contents of a note that the child wrote and brought to a scheduled session. It is subsequently determined that the note was dictated by the parent for whom the child had expressed a preference and that the child's preference was predicated on that parent's failure to impose reasonable restrictions on the child's behavior.)

Idiosyncratic Criteria

Even in states in which the criteria (or factors) to be considered have been statutorily defined or alluded to in case law, one occasionally encounters cases in which evaluators have taken it upon themselves to utilize criteria of their own choosing, in place of those articulated in statutes or discussed in precedential decisions. In performing parenting evaluations, evaluators have accepted an assignment an integral element of which often involves attending to factors that have been dictated by the State and may not be the factors that the evaluators would have chosen.

The Approximation Rule

In 2002, the American Law Institute (ALI) promulgated Principles of the Law of Family Dissolution: Analysis and Recommendations, a document in which the ALI proposed reforms in the criteria utilized in developing parenting plans for divorcing parents involved in custody litigation. The recommendations included The Approximation Rule, under the terms of which courts would have been “required to allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action.”

The ALI proposal was met with widespread criticism, and only one state (West Virginia) has endorsed the presumption that is incorporated in The Approximation Rule. Nevertheless, there are evaluators who simply do the math that is suggested by the rule ' calculating the amount of time each parent spent performing caretaking functions for the child in the past, and basing custody/access recommendations on these calculations. If parenting plans are to be created in accordance with The Approximation Rule, no expertise in any one of the mental health disciplines is required and there is no need to utilize the services of forensic mental health practitioners.

One of the forces behind The Approximation Rule was Richard Neely, who, in 1981, was the Chief Justice of the West Virginia Supreme Court and who wrote The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed (Yale Law & Policy Review, 3(1) 168-186). In his opinion in Garska v. McCoy, 278 S.E.2d 357 (W. Va. 1981), Neely cautioned West Virginia jurists that if it walks like a duck, quacks like a duck, and looks like a duck, they should, nevertheless, keep in mind the importance of not calling it a duck, because state legislation (W. Va. Code 48-2-15 (1980)) barred consideration of duckyness. Justice Neely did not communicate his perspective in quite the same way that I have, here. What he did state was that, in J.B. v. A.B., 242 S.E.2d 248 (W. Va 1978), where the words “mother,” “maternal,” or “maternal preference” appeared, references to the “primary caretaker parent” should have been used.

What is most remarkable about Justice Neely's opinion is not his emphasis on gender-neutral terminology; it is his emphasis on parental needs rather than on children's needs. Neely observed: “The loss of children is a terrifying specter to concerned and loving parents; however, it is particularly terrifying to the primary parent, who, by virtue of the caretaking function, was the closest to the child before the divorce ' ” (at 360). In the foregoing statement, the emphasis has been placed not on the loss to children of primary caretakers, but on the “ terrifying specter” that must be faced by the affected adults.

The Return of Troxel

In its decision in Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court commented on the deliberative process employed by the Superior Court trial court judge, who decided that, in making sense of the issues before him, it would be useful to “'look back at some personal experiences ' '” [530 U.S. 57, at 61]. As is true of judges, evaluators err when they endeavor to bring meaning to the events and issues in the lives of others by reflecting upon analogous events and issues in their own lives. It is illogical, at best, to presume that our understanding of events in the lives of others will be enhanced by examining them through a retrospective (and irremediably subjective) examination of our own lives.

Jettison the Empathy

More specifically, evaluators should ignore whatever empathic responses are stimulated as parents relate unfortunate events in their pre-litigation lives. Consider that which follows, taken from an evaluator's report. “The Court's attention is called to the historical information appearing on pages 30 ' 42 of this report. During the period in the lives of young girls that most are enjoying their emerging sexuality, Sally's childhood was marred by ' ” It is not within the scope of evaluators' authority to grant absolution to parents whose deficiencies are attributable to their mistreatment at the hands of others and to censure those whose deficiencies seem to have been self-cultivated.

The Development of Recommendations

Think of the Child As a Chair

In 1978, Chief Judge Brietel, writing for a unanimous New York Court of Appeals in Braiman v. Braiman (407 N.Y.S.2d 449), stated that “[a]s a court-ordered arrangement imposed upon already embattled and embittered parents, ' [joint custody] can only enhance familial chaos” (at 451). Dividing up the furniture in the marital residence appeals to everyone's sense of fairness to the divorcing adults. In dividing up parental time with the children of the marriage, our focus should be on the best interests of the affected child(ren), not on fairness to the litigating parents.

In an article on sole versus joint custody, appearing in the December, 2008 issue of The Matrimonial Strategist, an author opined that a parent's perception that s/he is involved in the process of decision-making, “somehow elevates that parent's image ' .” In responding to that author (January, 2009, Matrimonial Strategist) I wrote: “Parental concerns with such issues as 'image' must be seen by our courts for what they are: distractions.” Evaluators lose focus when parents'concerns with their images are factored into evaluator decision-making.

Flouting the Law, in the Name of Fairness

In the State of New Jersey, 14 factors are to be considered in the development of parenting plans. One of those criteria is “employment responsibilities.” Mr. and Mrs. Worker are involved in custody litigation. Though both parents are employed, Mr. Worker works in a family-owned business and the other members of the family afford him great flexibility with regard to such matters as his arrival and departure times. Mrs. Worker works a stereotypical punch-the-time-clock type of job. It is indisputable that Mr. Worker is available to the children at times when Mrs. Worker is not. In her discussions with the evaluator, Mrs. Worker advances the position that consideration by the evaluator of the “employment responsibilities” criterion would place her at an unfair disadvantage. In his report, the evaluator expresses his support for Mrs. Worker's perspective and makes it known that the “employment responsibilities” criterion will not be considered.

Promises, Promises

At times evaluators convey, in their reports and in their testimony, their confidence that everyone involved in the task of structuring a parenting plan can base their planning on assurances offered concerning parents' intentions to alter patterns of behavior that have presented problems in the past. This is seen in its most dramatic form when parents with indisputable substance abuse problems offer assurances that the problems are, and will remain, under control.

In some states, statutory language or language found in case law indicates that a strong preference is to be given to the parent who is more likely to be cooperative with the other parent in post-divorce parenting. An evaluator working in a state with a “friendly parent” presumption has written: “John has acknowledged his past failures to cooperate with Mary in parenting their child, but he has assured me that he intends to cooperate with her in the future. I find his assurance to be credible.”

And, with the Aid of My Ouija Board '

In the absence of anything in the record and in the absence of any concern expressed by Parent A, an evaluator suspects that Parent B, if designated as the primary custodian, will relocate. The evaluator writes: “Mrs. Smith's parents and her sister reside in Phoenix, Arizona. It is clear from statements made by her that her parents and her sister are important sources of emotional support. Though Mrs. Smith has expressed no intention to relocate and Mr. Smith has expressed no concern that Mrs. Smith might relocate, this evaluator must draw upon his professional experience in formulating his opinions. Divorce is a major stressor and, it has been my experience that when people are faced with such stressors, people often seek out their support systems. I deem it likely that if Mrs. Smith is designated as the boys' primary custodian, she will subsequently seek the court's permission to relocate to Phoenix. It is primarily for this reason that I urge the court to designate Mr. Smith as the primary custodian.”

As Long As I'm Submitting a Report '

' Let me share with you my opinions on some issues that you did not inquire about and that are outside the sphere of my expertise. An evaluator whose expertise lies in the mental health field writes: “The financial arrangement to which Mr. and Mrs. Smith have agreed requires reexamination. In my view it is unfair to Mrs. Smith.”

Conclusion

Where the advisory input of mental health experts has been sought, it is optimistically presumed that the content of their reports and testimony will assist triers or fact to understand the evidence or to determine a fact in issue. When evaluators address issues that are not relevant to the issues in dispute, they fail in their basic obligation to assist triers of fact.

None of those who have written on the subject of performing parenting evaluations has asserted that the task is an easy one. There has, however, been broad agreement among writers in the mental health fields, and reasonable clarity in law, concerning the objective that evaluators should endeavor to meet. The Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation, in its Preamble, states, in part: “The child custody evaluation process involves the compilation of information and the formulation of opinions pertaining to the custody or parenting of a child and the dissemination of that information and those opinions to the court, to the litigants, and to the litigants' attorneys.”

Elsewhere in the Preamble to the Model Standards, evaluators are admonished to “perform their professional activities with a recognition of the investigative nature of the task ' .” Students in introductory psychology courses learn that we cannot objectively investigate that which we are simultaneously endeavoring to alter, yet it is not uncommon to find that evaluators have endeavored to improve the family relationships that they have been assigned to observe and describe.

The nature of the task accepted by evaluators obligates them to assess and describe parenting characteristics that are likely either to facilitate or to hamper each parent's efforts to provide effective parenting to the children who are the focus of litigation. Where deficiencies are noted in the manner in which a parent interacts with a child, the evaluator's task is to describe the way(s) in which the interactions are problematic and, if possible, to offer professional opinions concerning the likely long-term consequences for the child of residing with a parent who deals with the child in the specifically described ways. It is not the task of an evaluator to undertake efforts to alter problematic parent-child interaction patterns.

Consider that which follows, taken from the transcript of an evaluator's deposition. In the midst of a lengthy evaluation, an evaluator has taken steps intended to transform children who interact poorly with their father into children who will “behave, be lovely children ' [and be] respectful and courteous” when with their father. The evaluator describes her intervention as an “effort in a therapeutic-type basis ' ” and adds: “ I'm trying to improve the circumstances between the children and their father ' .” The evaluator's effort to improve the interpersonal dynamics between the children and their father compromises her ability to perform the task that was accepted.

Loss of focus by evaluators can be seen in the data-gathering process, during the process of data integration and opinion formulation, and in the generation of recommendations.

Data Gathering

Don't Know Much About History

The question to be asked (and correctly answered) is: How important is a litigant's personal history in the context of a custody evaluation? Historical information is not inconsequential; however, the information that is most germane is that which describes the history of the child as s/he has developed within the context of the family. Also pertinent is information bearing upon the following: 1) each parent's individual history as a caregiver; 2) the shared history of the parents as partners in the child-rearing process; 3) the manner in which parents have communicated in discussions concerning their children; and 4) what each parent has done, is motivated to do, is available to do, and is able to do for and with the children for whom a parenting plan is being constructed. Historical information bearing upon such issues as the parents' respective sexual needs, relationships with in-laws, finances, or leisure activities is not.

Many evaluators gather (and pass along in their reports) historical information the relevance of which is questionable. Three very mildly altered examples follow.

1. Sally grew up in Smallville, where her mother was a sheep herder and her father was a carpenter. In 1957, Sally and her parents moved into a two-family home owned by a 65-year-old widow by the name of Irma. The family lived in Irma's home throughout Sally's high school years. While in high school, Sally belonged to the chess club and was the lead javelin thrower on the school's track team. Assisting the trier of fact who is presiding over Sally's custody dispute does not require that the evaluator's report include the name and age of the landlady who owned Sally's childhood home.

2. Ann's mother is now employed by a traveling circus, as a trapeze artist, and her father is employed by the same circus as a rigger. The fact that Ann's parents are employed by a traveling circus is pertinent only within the context of a brief discussion of the proximity of extended family or an analysis of the availability of the maternal grandparents to provide back-up child care.

3. During their courtship, the Smiths spent their time together going to Broadway plays, attending sporting events, and swimming at a local beach during the summer. During the early months of 2011, though the Smiths continued to sleep together, there was no sexual intimacy. There is no discernible connection between the information imparted in the foregoing two sentences and the issue before the court, i.e., the relative parenting strengths and deficiencies of the Smiths.

Is My Parenting the Inalterable Product of My Upbringing?

In describing the upbringing of a parent, an evaluator writes: His mother was abusive and controlling. As a direct result, Mr. Smith has become a parent who exercises no control over the children and refuses to dispense discipline, even when doing so is clearly warranted. It is likely that somewhere, in some evaluator's file, there is a report in which we would find: His mother was abusive and controlling. We should not be surprised, therefore, that Mr. Smith is abusive and controlling. There is no immutable link between our childhood experiences and our parenting characteristics as adults. Page after page of information concerning the childhood of each parent is a distraction.

Information-Gathering for Dummies

Many evaluators use structured questionnaires as a means by which to gather data. Though there is no reason to avoid the use of questionnaires, some evaluators cut and paste litigant statements, taken from questionnaires, directly into their reports, failing to investigate the accuracy of statements made. Evaluators who place significant emphasis on information that has been provided in the form of responses to inquiries on questionnaires explain this practice by pointing to the fact that the questions posed to one litigant are identical to those posed to the other litigant. First, the advantages of uniformity of process can be over-rated. Often, areas that require exploration in interviews with one parent do not require exploration in interviews with the other parent. Second, on many questionnaires, the physical space allotted is insufficient, forcing litigants to offer information that is simply incomplete. Third, many evaluators who ask that litigants complete questionnaires permit the litigants to complete the questionnaires in environments in which assistance may be readily available. Finally, many evaluators who utilize questionnaires fail to pose follow-up questions of the type that would likely be posed in face-to-face interviews.

Exploring Marital Issues

Some evaluators employ a data gathering method advanced by Benjamin and Gollan and referred to as “allegation-focused” (Family evaluation in custody litigation: Reducing risks of ethical infractions and malpractice. Washington, DC: American Psychological Association, 2003). When employing this method, the allegations upon which evaluators focus include “divorce-related allegations.” The allegations to be explored are not limited to those that are relevant to parenting.

In 2007, Benjamin and Gollan, with a third author (Glenn Ally), offered amplification. They wrote: “By delineating each of the allegations during the evaluation and by providing repeated opportunities to clarify each allegation, the language of the parties can be used to create an ideographic narrative that represents the characteristics of the parties operationally” (p. 105). (Family evaluation in custody litigation: Reducing risks of ethical infractions and malpractice. J Forensic Psychology Practice, 7(3), 101-111). Notably absent is an articulation of the basis for the authors' view that an examination of divorce-related (as opposed to parenting-related) allegations generates information that is useful to judges who are endeavoring to construct parenting plans.

How Can You Go Wrong Focusing on the Numbers?

Once-attorney/now-judge Dianna Gould-Saltman has opined that attorneys like tests because they “break things down to numbers, and we understand numbers” (p. 72). (Gould-Saltman, D. (2005). Testing, one, two, three, testing: An attorney perspective. J Child Custody, 2(1), 71-81.) I respectfully disagree with Gould-Saltman's assertion that “we understand numbers.” We think we understand numbers, and the baseless notion that numbers can be counted on to contribute clarity and objectivity to an otherwise murky process leads many evaluators, attorneys, litigants, and judges to attach to test scores far more weight than is appropriate.

Counting the Ballots

An evaluator writes: Eighteen letters were submitted by individuals supporting Mrs. Popular's bid for sole custody of Prize. Only seven such letters were submitted in support of Mr. Popular. Collateral sources are supposed to be utilized as a means by which to obtain information, and the focus of an evaluator's attention should be on the relevance of, verifiability of, and added information provided by the collateral source. The courts are not overseeing popularity contests and, if they were, counting letters of endorsement could be accomplished as easily by court personnel as by mental health professionals, and at a substantially lower cost.

And May the Good Spouse Win

In reviewing the contemporaneously taken notes of evaluators (which is standard practice in 49 of our 50 states), it is not at all uncommon to find that more time was expended gathering information concerning marital interactions and issues than in gathering information relating to parent-child dynamics and issues. It is not the task of an evaluator to formulate opinions bearing upon which of the two litigants was the better spouse during the course of their marriage. A fictitious philosopher once observed: “That which we gather, we must use.” It is not surprising, therefore, that evaluators who gather voluminous information relating to marital issues subsequently utilize the accumulated information in formulating opinions concerning the parenting strengths and deficiencies of the two litigants.

Data Integration and Opinion Formulation

Name That Condition

The AFCC's Model Standards urges evaluators to:

recognize that the use of diagnostic labels can divert attention from the focus of the evaluation (namely, the functional abilities of the litigants whose disputes are before the court) and that such labels are often more prejudicial than probative. For these reasons, evaluators shall give careful consideration to the inclusion of diagnostic labels in their reports. In evaluating a litigant, where significant deficiencies are noted, evaluators shall specify the manner in which the noted deficiencies bear upon the issues before the court.

The American Psychological Association's recently adopted Specialty Guidelines for Forensic Psychology encourages forensic examiners to “provide information that is most relevant to the psycho-legal issue [and, more specifically,] to consider the problems that may arise by using a clinical diagnosis in some forensic contexts ' .” Evaluators are far more helpful to those who seek their advisory input when the evaluators identify specific attitudes, motivations, and behavior patterns that are linked directly to parenting and articulate with reasonable precision how the identified attitudes, motivations, and behaviors are linked to parenting effectiveness (or ineffectiveness).

Adultery ' Under Extenuating Circumstances

Consider one evaluator's perspective on the role of family history as a mitigating factor in a father's glaringly public adulterous relationship. Mr. and Mrs. Jones have two children. Mr. and Mrs. Smith have three children. The Jones and the Smith children attend the same school. Mr. Jones and Mrs. Smith commence an atypically overt adulterous relationship, which continues unabated throughout the course of a custody evaluation being conducted in connection with the Jones's divorce. In offering commentary, the evaluator writes: “In order to understand Mr. Jones's behavior, it must be seen in a broader perspective. Throughout his life, Mr. Jones has borne the burden of trying to meet expectations communicated to him by his parents. At 45, it was long past time for him to individuate and break free of parental control. His adulterous relationship was undoubtedly his way of letting his parents know that he was now his own person.” Noteworthy for its absence is any opinion concerning the particular method chosen by Mr. Jones as a means by which to “break free of parental control” or what his decision might suggest about his ability to subordinate his own needs to those of his children.

Children Often Prefer Permissiveness

In many jurisdictions, consideration is given to the articulated preferences of children with regard to custodial placement and visitation. Some evaluators appear to accept children's statements in much the same way that one might collect ballots. Maintenance of focus on children's best interests is not facilitated by recording which parent with whom they say they would prefer to reside and passing that information along without comment. As suggested in other portions of this article, the simple stuff requires no expertise. Writing down what children say requires stenographic skills, not education, training, and experience in one of the mental health disciplines. Expertise comes into play when evaluators, in addition to noting children's chronological ages, evaluate their emotional and social maturity, their cognitive development, their capacity for contemplating the long-term implications of their choices, the logic that underlies their expressed preferences, and their possible exposure to subtle coercion by a parent.

This section was begun with the heading, “children often prefer permissiveness,” because, in some cases, evaluator explorations into children's preferences are so superficial that even such obvious problems as children's frequent preferences for parents who are permissive and who place no age-appropriate demands upon them go undetected. (Example: An evaluator, in explaining the basis for his decision to attach great weight to the expressed preference of an 11-year-old child, alludes to the contents of a note that the child wrote and brought to a scheduled session. It is subsequently determined that the note was dictated by the parent for whom the child had expressed a preference and that the child's preference was predicated on that parent's failure to impose reasonable restrictions on the child's behavior.)

Idiosyncratic Criteria

Even in states in which the criteria (or factors) to be considered have been statutorily defined or alluded to in case law, one occasionally encounters cases in which evaluators have taken it upon themselves to utilize criteria of their own choosing, in place of those articulated in statutes or discussed in precedential decisions. In performing parenting evaluations, evaluators have accepted an assignment an integral element of which often involves attending to factors that have been dictated by the State and may not be the factors that the evaluators would have chosen.

The Approximation Rule

In 2002, the American Law Institute (ALI) promulgated Principles of the Law of Family Dissolution: Analysis and Recommendations, a document in which the ALI proposed reforms in the criteria utilized in developing parenting plans for divorcing parents involved in custody litigation. The recommendations included The Approximation Rule, under the terms of which courts would have been “required to allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action.”

The ALI proposal was met with widespread criticism, and only one state (West Virginia) has endorsed the presumption that is incorporated in The Approximation Rule. Nevertheless, there are evaluators who simply do the math that is suggested by the rule ' calculating the amount of time each parent spent performing caretaking functions for the child in the past, and basing custody/access recommendations on these calculations. If parenting plans are to be created in accordance with The Approximation Rule, no expertise in any one of the mental health disciplines is required and there is no need to utilize the services of forensic mental health practitioners.

One of the forces behind The Approximation Rule was Richard Neely, who, in 1981, was the Chief Justice of the West Virginia Supreme Court and who wrote The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed (Yale Law & Policy Review, 3(1) 168-186). In his opinion in Garska v. McCoy , 278 S.E.2d 357 (W. Va. 1981), Neely cautioned West Virginia jurists that if it walks like a duck, quacks like a duck, and looks like a duck, they should, nevertheless, keep in mind the importance of not calling it a duck, because state legislation (W. Va. Code 48-2-15 (1980)) barred consideration of duckyness. Justice Neely did not communicate his perspective in quite the same way that I have, here. What he did state was that, in J.B. v. A.B. , 242 S.E.2d 248 (W. Va 1978), where the words “mother,” “maternal,” or “maternal preference” appeared, references to the “primary caretaker parent” should have been used.

What is most remarkable about Justice Neely's opinion is not his emphasis on gender-neutral terminology; it is his emphasis on parental needs rather than on children's needs. Neely observed: “The loss of children is a terrifying specter to concerned and loving parents; however, it is particularly terrifying to the primary parent, who, by virtue of the caretaking function, was the closest to the child before the divorce ' ” (at 360). In the foregoing statement, the emphasis has been placed not on the loss to children of primary caretakers, but on the “ terrifying specter” that must be faced by the affected adults.

The Return of Troxel

In its decision in Troxel v. Granville , 530 U.S. 57 (2000), the United States Supreme Court commented on the deliberative process employed by the Superior Court trial court judge, who decided that, in making sense of the issues before him, it would be useful to “'look back at some personal experiences ' '” [530 U.S. 57, at 61]. As is true of judges, evaluators err when they endeavor to bring meaning to the events and issues in the lives of others by reflecting upon analogous events and issues in their own lives. It is illogical, at best, to presume that our understanding of events in the lives of others will be enhanced by examining them through a retrospective (and irremediably subjective) examination of our own lives.

Jettison the Empathy

More specifically, evaluators should ignore whatever empathic responses are stimulated as parents relate unfortunate events in their pre-litigation lives. Consider that which follows, taken from an evaluator's report. “The Court's attention is called to the historical information appearing on pages 30 ' 42 of this report. During the period in the lives of young girls that most are enjoying their emerging sexuality, Sally's childhood was marred by ' ” It is not within the scope of evaluators' authority to grant absolution to parents whose deficiencies are attributable to their mistreatment at the hands of others and to censure those whose deficiencies seem to have been self-cultivated.

The Development of Recommendations

Think of the Child As a Chair

In 1978, Chief Judge Brietel, writing for a unanimous New York Court of Appeals in Braiman v. Braiman (407 N.Y.S.2d 449), stated that “[a]s a court-ordered arrangement imposed upon already embattled and embittered parents, ' [joint custody] can only enhance familial chaos” (at 451). Dividing up the furniture in the marital residence appeals to everyone's sense of fairness to the divorcing adults. In dividing up parental time with the children of the marriage, our focus should be on the best interests of the affected child(ren), not on fairness to the litigating parents.

In an article on sole versus joint custody, appearing in the December, 2008 issue of The Matrimonial Strategist, an author opined that a parent's perception that s/he is involved in the process of decision-making, “somehow elevates that parent's image ' .” In responding to that author (January, 2009, Matrimonial Strategist) I wrote: “Parental concerns with such issues as 'image' must be seen by our courts for what they are: distractions.” Evaluators lose focus when parents'concerns with their images are factored into evaluator decision-making.

Flouting the Law, in the Name of Fairness

In the State of New Jersey, 14 factors are to be considered in the development of parenting plans. One of those criteria is “employment responsibilities.” Mr. and Mrs. Worker are involved in custody litigation. Though both parents are employed, Mr. Worker works in a family-owned business and the other members of the family afford him great flexibility with regard to such matters as his arrival and departure times. Mrs. Worker works a stereotypical punch-the-time-clock type of job. It is indisputable that Mr. Worker is available to the children at times when Mrs. Worker is not. In her discussions with the evaluator, Mrs. Worker advances the position that consideration by the evaluator of the “employment responsibilities” criterion would place her at an unfair disadvantage. In his report, the evaluator expresses his support for Mrs. Worker's perspective and makes it known that the “employment responsibilities” criterion will not be considered.

Promises, Promises

At times evaluators convey, in their reports and in their testimony, their confidence that everyone involved in the task of structuring a parenting plan can base their planning on assurances offered concerning parents' intentions to alter patterns of behavior that have presented problems in the past. This is seen in its most dramatic form when parents with indisputable substance abuse problems offer assurances that the problems are, and will remain, under control.

In some states, statutory language or language found in case law indicates that a strong preference is to be given to the parent who is more likely to be cooperative with the other parent in post-divorce parenting. An evaluator working in a state with a “friendly parent” presumption has written: “John has acknowledged his past failures to cooperate with Mary in parenting their child, but he has assured me that he intends to cooperate with her in the future. I find his assurance to be credible.”

And, with the Aid of My Ouija Board '

In the absence of anything in the record and in the absence of any concern expressed by Parent A, an evaluator suspects that Parent B, if designated as the primary custodian, will relocate. The evaluator writes: “Mrs. Smith's parents and her sister reside in Phoenix, Arizona. It is clear from statements made by her that her parents and her sister are important sources of emotional support. Though Mrs. Smith has expressed no intention to relocate and Mr. Smith has expressed no concern that Mrs. Smith might relocate, this evaluator must draw upon his professional experience in formulating his opinions. Divorce is a major stressor and, it has been my experience that when people are faced with such stressors, people often seek out their support systems. I deem it likely that if Mrs. Smith is designated as the boys' primary custodian, she will subsequently seek the court's permission to relocate to Phoenix. It is primarily for this reason that I urge the court to designate Mr. Smith as the primary custodian.”

As Long As I'm Submitting a Report '

' Let me share with you my opinions on some issues that you did not inquire about and that are outside the sphere of my expertise. An evaluator whose expertise lies in the mental health field writes: “The financial arrangement to which Mr. and Mrs. Smith have agreed requires reexamination. In my view it is unfair to Mrs. Smith.”

Conclusion

Where the advisory input of mental health experts has been sought, it is optimistically presumed that the content of their reports and testimony will assist triers or fact to understand the evidence or to determine a fact in issue. When evaluators address issues that are not relevant to the issues in dispute, they fail in their basic obligation to assist triers of fact.