The appearance this is Business as usual in Illinois?

The appearance this is Business as usual in Illinois?

OFFICIAL NEWSLETTER OF THE PROFESSIONAL ACADEMY OF CUSTODY EVALUATORS (PACE)
An INFORMAL forum for professionals in the custody field ISSUE # 12/13
WELCOME
Welcome to the Custody Newsletter. Our tone is informal; we WANT contributions based on your clinical experiences, as well as more formal presentations.
Second, we solicit input from members of all professions. This is why it is not mandatory that any specific References format be followed, e.g., the bibliographic notation system of the American Psychological Association, the American Psychiatric Association, etc.
In general, we favor brief articles, contributions ranging from one-half of a typewritten page to about eight typewritten pages.
This edition of the Custody Newsletter has been formulated as a special double-issue so we could present, in its entirety, an article of exceptional worth. It has something of importance in it for everyone– for the experienced evaluator, as well as for the novice.
While its main emphasis is on the input of children into a custody evaluation, it features much information on a practice we all encounter– and this happens to be a practice toward which we probably all have mixed feelings: the judicial interview.
My own perceptions of this practice run from favorable to aghast.
It is my great pleasure to present this information-packed article by Eric Speth, J.D., Ph.D. As you will see, Eric not only is a very good thinker, he is also a very good writer.
FACTORS AFFECTING CHILDRENS’ POWER TO CHOOSE THEIR
CARETAKERS IN CUSTODY PROCEEDINGS
by Eric Speth, J.D., Ph.D.
Atascadero State Hospital
INTRODUCTION
To determine which custodial arrangement would be in a child’s best interest, the judge considers evidence from numerous sources, one of which may be the child herself. Many jurisdictions encourage judges to interview children by statutorily requiring that the child’s preference be considered in the judge’s overall determination. However, whether or not to interview and how much weight to attribute to the preference are largely matters of judicial discretion.
Custody cases not only involve the competing interests of the parents, but also the interests of the child(ren) and the state’s interest in protecting them. The procedure of in camera interviewing, which is intended to protect children from the emotional trauma of testifying in open court, may pose serious threats to the parents’ rights to due process. Judges may be tempted to base decisions on evidence (the child’s testimony) not developed in open court where it could be challenged by the affected parties. Thus, procedural safeguards such as maintaining a record of the interview and allowing parent’s counsel to attend are required in certain jurisdictions.
Judicial interviews are typically brief. In a matter of 15 to 30 minutes, judges must not only determine whether the child is competent to testify but must also elicit enough information to determine that the preference is valid and well reasoned. This simply may not be possible in a cursory interview.
Judges have little or no formal training in child development and the techniques of interviewing children. The risk of miscommunications leading to erroneous conclusions, is considerable. This appears especially true if the child’s preference is accepted at face value without delving into the child’s underlying motivations for choosing a particular caretaker. Mental health professionals, given their training, may be better able to elicit accurate information from the child.
Finally, the degree of independent representation the child receives in the proceedings may affect the weight given to the stated preference. Advocates and guardians ad litem appear to be in the best position to insure that a child’s preference receives due consideration by the court.
HISTORICAL BACKGROUND
In custody cases, the child’s preference as to custodial parent is currently given substantial weight in many jurisdictions. Historically, this was not the case. Either the child’s wishes were not considered relevant, or were given little weight in the determination. Furthermore, the criteria used to make custody determinations functioned to severely limit the child’s choices.
Prior to and through the 1800s, fathers were almost universally awarded custody of their children. Mothers had no standing in the court to assert any custody rights because they and the children were considered the husband’s property (Derdeyn, 1976a). Also, under English Common Law, if the father was deprived of custody, his obligation to financially support the children ended. Therefore, the courts were very reluctant to award custody to mothers and a child’s stated preference to live with the mother was disregarded.
The latter 1800s saw the emergence of the Tender Years Doctrine, which assumed that maternal care was qualitatively different from, and more essential to, normal development than paternal care. This doctrine, which served as the primary criterion for awarding custody of children of approximately 10 years and younger, prevailed until very recently and overrode a young child’s wish to live with his/her father. During the 1960s, several social trends contributed to a reevaluation of the assumptions underlying this doctrine. Womens’ liberation, increased employment of women, a diversification of traditional sex roles and increased participation by fathers in child rearing resulted in court decisions and statutory revisions which gave more rights to fathers (Lyman & Roberts, 1985).
Currently, all states have replaced the Tender Years Doctrine with the “Best Interests of the Child” standard (Hoell & Toepke, 1984). However, it continues to surface in the form of judicial discretion (Pearson & Ring, 1982) and in the subjective interpretations of evaluators in custody disputes (Woody, 1977). Some states, such as Alabama, have ruled the doctrine unconstitutional because it is a gender- based classification which discriminates against fathers (Devine v. Devine, 1981).
Traditionally, biological parents were favored over other competing caretakers such as foster parents, grandparents and stepparents. Thus, a child’s preference for such individuals would be given little or no weight in the absence of a showing of parental incompetence. More recently, however, concepts such as “primary caretaker” and “psychological parent” have been used to justify custodial awards to non-biological parents as against biological parents (Atkinson, 1984). These concepts have been derived from theories of human development, particularly those of John Bowlby and Anna Freud, and emphasize a child’s psychological bond or attachment to a particular adult regardless of biological relatedness (Radin, 1984). This bond is described in terms of the love, affection and basic trust and confidence inherent in the interaction between the adult and the child (Goldstein, Freud & Solnit, 1979). This development is consistent with the best interest standard in that the child’s welfare is placed above the rights of biological parents to have custody of their children.
In the past 20 years the divorce rate has more than doubled, and in 1982 reached an all time high of 1.2 million divorces, more than half of which involved children (Benedek & Schetky, 1985). It is estimated that 45 percent of all children born in 1983 will experience the divorce of their natural parents (Wallerstein, 1985). The divorce rate has increased among all age groups in the past 10 years, but especially among young adults. The average length of marriages that end in divorce is 6.6 years (Lyman & Roberts, 1985). This results in a disproportionately large number of young children involved in custody disputes. Most custody arrangements are negotiated privately. For instance, of the 2,600 divorce cases involving minor children filed in Oakland County, Michigan in 1981, only 26 cases went to trial (Lombard, 1984). Nevertheless, the sheer volume of divorces involving children results in a steady stream of custody cases in the courts.
THE JUDICIAL INTERVIEW
Statutory Guidelines Regarding Preference
Michigan’s statute, which has served as a model for many jurisdictions, includes among the 10 factors to be considered, “The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference” (Michigan Comprehensive Laws Annotated, 1981). The Uniform Marriage and Divorce Act, sec. 402, similarly directs the court to consider, among other factors, “The wishes of the child as to his custodian.”
As of 1984, 33 state statutes allowed for judicial consideration of the child’s preference as to custodial parent in awarding custody (Hoell & Topke, 1984). However, this factor can never be controlling because “The weight to be given the wish of the child in a custody case depends on the contribution the reasons for that wish make to the solution of the ultimate test, the best interests and welfare of the child” (Fanning v. Warfield, 1969).
The child’s preference can also be an issue when one parent petitions the court to modify an existing custody arrangement. The general rule is that a change must occur in the circumstances of the custodial arrangement which materially affects the child’s best interests before the court will consider modification. A change in the child’s preference alone is not sufficient (Elkins v. Vanden Bosch, 1983). For instance, in a Pennsylvania case, a father appealed a district court decision not to modify a custodial arrangement. Although the judge found the 7 year old to be “bright, precocious and articulate” and her preference to be “unprompted, voluntary and spontaneous,” the preference did not amount to a material change in circumstances justifying a modification (Burr v. Morgart, 1985). However, when circumstances change, the preference may be reconsidered and may be a factor in the court’s decision (Burley v. Burley, 1983).
There are two general ways in which statutes are qualified by other criteria which are deemed necessary for the child to state a competent preference. One type of statute allows children over a specified age to choose their custodial parent. In Georgia, “where the child has reached the age of 14 years, such child shall have the right to select the parent with whom such child desires to live and such selection shall be controlling unless the parent so selected is determined not to be a fit and proper person to have the custody of said child” (Georgia Code Annotated, 1990). Mississippi’s statute provides that:
if the court shall find that both parties are fit and proper persons to have custody of the children of the marriage and that either party is able to adequately provide for the care and maintenance of the children, and that it would be to the best interest and welfare of the children, then any such child who shall have reached his twelfth (12th) birthday shall have the privilege of choosing the parent with whom he shall live. (Mississippi Code Annotated, 1972).
Ohio similarly allows “any child twelve years of age or more …. to choose that parent with whom the child is to live unless the court finds that the parent so selected is unfitted to take charge or unless the court finds, with respect to a child twelve years of age of older, that it would not be in the best interest of the child to have the choice” (Ohio Revised Code Annotated, 1986). These statutes, however, do not prohibit a court from considering the preferences of younger children. Other statutes merely require the child to be of sufficient age without specifying a cutoff. For instance, Michigan requires the child “to be of sufficient age to express a preference” (Michigan Comprehensive Laws Annotated, 1981).
More typical, however, are statutes that refer to “sufficient age and intelligence,” the rationale being that the capacity to form a well reasoned choice varies among children of the same age. Experts in child development point to the fact that there is significant variability in maturational processes and that children of the same age can be at different levels of cognitive development. This fact has also been recognized by the various courts. In Ashe v Ashe (1986), the Minnesota Supreme Court, in holding that the preference of a 9 year old girl should be considered, stated that
“Although she was then only nine years old, we cannot say that it was an abuse of discretion to take her wishes into consideration. It was for the court, in its sound discretion, to appraise her intelligence and then to determine what weight, if any, should be given to her wishes in determining he custody. The intelligence of a child is not to be measured by any arbitrary age standard but rather by the mental development she has attained.”
In California, “If the child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to his wishes in making an award of custody or modification thereof” (California Civil Code, (1983). This is a vague standard that has never been precisely defined by case law and therefore determinations continue to be largely a matter of judicial discretion. In In re Marriage of Mehlmauer (1976), a father sought to modify a custody order so that his 14 year old son could live with him, which was consistent with the son’s preference. The court stated that the son’s testimony “demonstrated little more than that he sought the change to spend more time with his father, wear longer hair, and perhaps come home or go to bed a little later than his stepfather permitted.” However, the child’s affidavit further stated that he was unhappy because his stepfather was in the military, which had necessitated five moves in five years, completely disrupting his social life. He further stated that he wanted to live with his natural father because he was being taught mechanics, electronics and flying. In spite of this, the judge found that his preference was not supported by a mature reasoning process and, while the preference was considered, it was given no weight in the determination. The father’s motion was denied on grounds that he could not provide any evidence that the modification was in the child’s best interest. The Appellate Court affirmed, stating that the consideration and subsequent disregard of the preference was not an abuse of judicial discretion.
In another case, children ages 10 and 13 were found to meet the standard and their stated preference was very influential, if not determinative, in the modification of a custody decision. The mother had planned to move the children to a new community. The father, believing this move to be too disruptive, filed a motion for modification to give him custody to keep the children in the same community and school. On appeal, the mother cited In re Marriage of Mehlmauer (1976) in arguing that the court should not consider the children’s preference. The court, however, found that the children did meet the statutory criteria. “Maturity is not measured by chronological age….The court had the opportunity to personally observe the children and judge their sincerity, bearing and degree of maturity, while questioning them in chambers” (In re Marriage of Rosson, 1986).
Florida’s statute, in somewhat different language, allows a consideration of the “reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding and experience to express a preference” (Florida Statutes Annotated, 1989). As in California, the courts have been inconsistent in applying the statute (Eddy v. Staufer, 1948; Borden v. Borden, 1966).
Many jurisdictions follow the Uniform Marriage and Divorce Act guideline and direct the court to consider preference, with no qualifications, thus leaving the issue of competency entirely to the discretion of the court. In jurisdictions which do not statutorily require a consideration of the child’s preference, judges frequently interview children in order to determine their wishes as to custodial arrangement (Scott, Reppucci & Aber, 1988). In fact, courts usually follow the “sufficient age and intelligence” standard even when it is not statutorily enumerated (Speca, 1978).
To an extent, age guidelines can be established by appellate court decisions. For instance, inTomlinson v. Tomlinson (1969), the trial judge interviewed children ages 5 and 7 regarding their preference, but the decision was reversed by the Idaho Supreme Court on grounds that children of those ages were too young to have sufficient mental capacity to competently state a preference. Thus, the court established age guidelines to be followed by the trial courts. Similarly, the Supreme Court of Michigan held that “The choice of a child of the tender age of 4 years cannot be considered by the court in its determination of what disposition shall be made of the case” (Burkhart v. Burkhart, 1938).
Although statutes may mandate that the child’s preference be considered and thus may encourage judges to interview, the decision of whether or not to interview is generally a matter of discretion. The Uniform Marriage and Divorce Act sec. 404 and most state statutes, through the use of “may”, avoid imposing a duty on the court to interview the child. Arizona, for instance, provides that “The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation” (Arizona Revised Statutes, 1976).
Failure to interview is generally not considered an abuse of discretion. In Pennsylvania, for example, the Superior Court, in reviewing a lower court’s refusal to interview a 7 year old because of his young age, held that “[T]here is no rule of law which requires an interview with the child in all custody cases regardless of the circumstances” (In re Davis, 1981). This is especially true where courts consider the child’s wishes indirectly through other witnesses and reports, or where the child has a guardian ad litem or attorney representing their interests. However, when an interview might provide information pertinent to determining the child’s best interest, failure to interview can be grounds for reversal (Crownover v. Crownover, 1975).
In Florida, case law is conflicting regarding whether the court has a duty to assess the child’s preference. In one case, a mother appealed an adverse custody decision on grounds that the children’s preferences were not ascertained by the court. In affirming, the appellate court observed that she did not call the children as witnesses or request an in camera interview to determine their preferences (Kitchens v. Kitchens, 1974). However, in another case, the court alluded to a duty (Pollack v. Pollack, 1967). In this instance, the mother appealed a decision to award custody of three boys, ages 9 through 15, to the father. The court held that “The children, with the possible exception of the youngest, were of an age which entitled their stated preferences to be given some weight by the chancellor.”
Similarly, in California, the courts have not construed their statute to absolutely mandate the interviewing of all children, but some decisions have pointed to the legislative intent in the use of the word “shall”. In one case, failure to interview children, ages 8 and 13, when the information obtained would help elucidate the child’s best interest, was considered an abuse of discretion and partial grounds for reversal (In re Jack H., 1980).
Montana’s statute also contains the word “shall” and the courts have interpreted this as a mandate (Montana Revised Code Annotated, 1983). The Montana Supreme Court has held that district courts “must consider the wishes of the children regarding custody and make findings as to their wishes or why they were not followed” (Murphy v. Murphy, (1974). In In re Marriage of Kramer(1978), the district court recorded that the children (ages 11, 13, and 15) expressed their wishes to live with their father on three separate occasions; once during an interview with the father’s counsel in chambers, again when the judge interviewed the children in chambers with counsel for both parties present, and a third time when one child testified during a motion for a new trial. In spite of this, the court made no mention of the childrens’ stated preferences in the findings of fact. On appeal, the Supreme Court of Montana held that the welfare of the children was not being served if their preferences were not being considered by the trial court. This oversight was held to be an abuse of discretion and grounds for reversal.
When a judge decides that an interview is appropriate, she may personally interview the child, appoint a mental health professional or both. Technically, before the judge may proceed to fact finding and eliciting the child’s testimony, a determination must be made as to the child’s competence.
The Issue of Competence
The factors to be assessed in determining a witness’ competence to testify vary among jurisdictions. The US Supreme Court, in Wheeler v United States (1895), held that the determination depends not on the child’s age but the child’s intelligence and the ability to appreciate the difference between truth and falsehood as well as an understanding of the duty to tell the truth. While there is no arbitrary age at which a child is prohibited from testifying, courts have generally held that four years is the minimum age at which children can be considered competent (Rogers, 1987). Some states specify ages below which children are rebuttably deemed to be incompetent. Several states provide that children under 10 are presumed incompetent unless shown otherwise, while older children are presumed competent with the burden shifting to the non-proponent.
While the language of these statutes vary, they generally require adequate verbal capacity, memory and appreciation for telling the truth. Interestingly, in a given jurisdiction, the statute regarding witness competency may be worded differently than the custody statute concerning the child’s competence to state a preference (if this is mentioned at all). Thus, it may not be entirely clear whether the threshold for competency as a witness is identical to that required to state a preference. For instance, in Louisiana, to be competent to testify in a civil proceeding, a witness must be “a person of proper understanding” (Louisiana Revised Statutes, 1968), whereas in child custody proceedings, the court may consider “the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference” (Louisiana Civil Code Annotated, 1974). A survey of Louisiana judges reveals that they apply the traditional competency standard of “understanding” rather than merely “of sufficient age” (Rogers, 1987).
An extensive review of the potential discrepancy between custody statutes and general witness competency standards is beyond the scope of this discussion. It is conceivable however, that in some jurisdictions, judges are assessing the preferences of children who could not meet the general threshold of competency to testify as a witness in civil trials. Conversely, some children who meet this standard may be precluded from stating a preference because they are, in the judge’s determination, not of sufficient age and maturity.
In every jurisdiction, the threshold of competency must be met, either by presumption or by an assessment of the above-mentioned cognitive faculties by the judge. The scope of this evaluation will depend on the judge’s informal impressions of the child’s maturity and intelligence. Given that judges typically spend only 15 to 20 minutes interviewing children (Lombard, 1984; Scott et al., 1988), any assessment of maturity is necessarily quite superficial. Assessing the child’s understanding of the duty to tell the truth may be as cursory as determining that she understands that reporting falsehoods could result in punishment. Intelligence and memory may be assessed by having the child report age, address, and grade in school (Siegel & Hurley, 1977). Sufficient verbal capacity is assumed if the child can understand simple questions and formulate understandable answers.
Weighing The Preference In Relation To Other Evidence
Assuming the child is deemed competent and expresses a preference, many factors may affect the weight the preference is given by the judge, in her discretion, in the overall determination. The child’s maturity, demeanor and reasons for having the preference, as well as subjective attitudes and biases on the part of the judge, may all influence the weight given the preference and thus affect the power of the child to choose a caretaker.
In Witmayer v. Witmayer (1983), the court stated that “while the preference of the child is one factor…the weight to be accorded this preference will vary according to the age, intelligence and maturity of the child, as well as the reasons given for the preference”. Judges often give more weight to preferences that appear to be “mature” and “well reasoned.” For instance, when a 5 year old child was interviewed in chambers with counsel for both parties present, the child expressed a preference to live with his father because there were farms in the area and he would be able to pick corn and potatoes (Witmayer v. Witmayer, 1983). The trial judge noted that the child appeared immature during the interview and volunteered that his father had coached him as to how to answer the questions. The appellate court ruled that the trial judge acted properly in not allowing this preference to be controlling. In a similar case, no weight was given to the wishes of two children, ages 6 and 8, due to the immature and arbitrary reasoning given by the children in support of their preferences (Ellingsen v. Magsamen, 1984). However, in another case, substantial weight was given to the preference of a 10 year old whom the court found to be mature, intelligent and articulate (Mahoney v. Mahoney, 1986).
Generally, the age and mental maturity of the child being assessed have great bearing on the weight attributed to their stated preference in the overall determination (Marcus v. Marcus, 1969). A general trend is for courts to give great deference to the preferences of adolescents, even in the absence of a statutory requirement to do so.
A survey of judges in Virginia revealed that the weight attributed to the stated preference was directly correlated with the child’s age (Scott et al., 1988). Of the judges surveyed, a majority stated that the wishes of children 5 years and younger were irrelevant to the determination and less than one quarter of the judges routinely interviewed children in this category. The preferences of children 6 to 9 years of age were considered by 65 percent of the judges while 97 percent considered preferences of children 14 years of age and older.
Several factors appear to account for this trend. Adolescents have the ability to reason through issues like adults (Weithorn & Campbell, 1982). Thus, judges have an easier time determining their preferences and the reasoning offered to support them and are therefore more likely to defer to their wishes. Also, giving adolescents qualified majority status is consistent with the general trend to give older minors liberty in making important decisions (Scott et al., 1988). Furthermore, courts are cognizant that adolescents who, given their age and level of independence, may well thwart the court’s attempts to impose an unwanted custodial arrangement upon them (Lombard, 1984).
It is noteworthy that the vast majority of contested custody cases involve younger children. One author postulates that parents also defer to the wishes of adolescents and realize the problems inherent in imposing an arrangement contrary to the adolescent’s wishes. Furthermore, attorneys may advise their clients not to compete for custody of older children when it would be contrary to their wishes, knowing the weight a judge is likely to give to the preference.
Interestingly, in Florida, cases have been reversed on appeal for giving unlimited power to children to decide with whom they will live. For instance, in Brown v. Brown (1974), the trial court placed four boys in the custody of their mother with the provision that they could decide to live with their father without further modification by the court. On appeal, the decision was remanded with instructions to give the mother permanent custody, on grounds that the arrangement allowed the children to play one parent against the other. Similarly, in Gall v. Gall (1976), the trial court gave total control and discretion to a 14 year old girl by allowing her to live with whichever parent she desired without a specific determination. The appellate court held that “To give a 14 year old girl the unbridled discretion to choose the parent with whom she will live invites the possibility of serious disciplinary problems.”
Because of the multiple factors considered by judges, it is difficult to determine what weight is actually given to the preference. For instance, in Jones v. Stone (1985), the court considered the wishes of a 4 year old to live with his foster parents after being abandoned by his natural mother who later petitioned for custody. Such issues as continuity of care and parental fitness obscure the relative weight given to preference in the overall determination.
Parental Rights to Due Process
Children who are deemed competent to testify are usually not placed on the witness stand, where they would be not only subject to the rigors of cross-examination, but also to the potential trauma of a face-to-face rejection of the non-preferred parent. Thus, the judge, in her discretion, may opt to interview the child in chambers in lieu of requiring testimony in open court (Lyman & Roberts, 1985). Many state statutes specifically provide for this. The Uniform Marriage and Divorce Act, sec. 404(a) regarding interviews, provides that
The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case.
However, three states, North Carolina, Oregon and Wyoming, allow parents to call their children to the witness stand. These statutes address due process concerns, which will be discussed below. For instance, the Supreme Court of North Carolina has held that parents “as litigants…can insist on their legal right that the judge consider nothing except evidence duly developed in open court” (Stevens v. Stevens, 1975). The court went on to state that the parents can waive this right and allow an in camera interview. Also, if they exercise their right to call the child as a witness in open court, the judge, in her discretion, may refuse to allow the child to testify. The Supreme Court of Oregon (Kreutzer v. Kreutzer, 1961) held that once children are deemed competent to testify, they may be called as any other witness.
Once a child has been determined competent, and the judge undertakes to interview the child, several interrelated issues, including the procedure and scope of the interview and due process rights of parents, come into play.
The procedure for conducting the interview, who may attend and whether or not a record is made, varies across jurisdictions. Interviews are usually conducted in the judge’s chambers to provide a non-threatening environment. Because an in camera interview without parents, and in many instances without their counsel, is supposedly less threatening to the child, it may result in more candid and reliable testimony. However, this arrangement may pose a serious threat to parents’ Fourteenth Amendment rights to due process. These interviews can elicit evidence contrary to their interests which the judge may consider in his decision. Thus, the parents are effectively denied the due process right to challenge the child’s testimony via rebuttal in open court. “Such secret evidence destroys the protection and safeguards of the trial system. A just determination of an individual’s interests is arguably replaced by an arbitrary, non-reviewable disposition possibly based on speculation, bias or inaccurate information” (Siegel & Hurley, 1977).
Parental rights have been considered by many courts. For instance, in In re Howard, (1980) the court stated that the “integrity of the family and the right of a parent to raise his child has been recognized as a fundamental right of liberty protected by the Fourteenth Amendment”. The U.S. Supreme Court, in Mathews v. Eldridge (1976), describes four considerations in a due process analysis: the private interest that could be affected; the risk of an erroneous deprivation of the interest by the procedure; the potential value of any additional or substitute procedural safeguards; and the government interest affected (which involves fiscal and administrative burdens the proposed safeguard would entail).
Given the profound effect that custody decisions can have on a parent’s relationship to his/her child(ren), this interest would appear to merit great consideration. Judges arriving at erroneous conclusions based on testimony/information obtained from the child is a very real concern. This is particularly true since, as we have seen, interviews are usually conducted in a quick, cursory manner by judges with no formal training in child development or the techniques of interviewing children (Jones, 1984). Furthermore, surveys of judges reveal that they frequently expand the scope of the interview to include not only assessment of preference, but also assessment of the reasons for the preference. In some cases, attempts are made to obtain information about the child’s parents (Lombard, 1984). This increases the likelihood of obtaining uncorroborated and unchallenged evidence detrimental to a parent’s case. Finally, the state has a clear interest in the child’s welfare.
The above-mentioned issues have resulted in procedural safeguards which have been employed by the courts to various degrees. One way of safeguarding the rights of parents is to limit the scope of judicial inquiry during the interview. A detailed assessment of the reasons and feelings underlying the stated preference may help insure the validity and reliability of the stated preference and thus reduce the likelihood of error. However, this may also increase the likelihood of eliciting evidence which has not been presented in open court and which may be damaging to the parent’s interest. “Thus, any benefit obtained by broadening or deepening the judicial inquiry is purchased directly at the expense of judicial fairness to the affected parent” (Scott et al., 1988).
In a survey of Judges in Michigan (Lombard, 1984), they were asked “Has the child ever brought up things that changed your opinion? If so, what things?” A majority (54 percent) of the judges “Acknowledge using reports of mistreatment or abuse, including sexual misconduct [one case]..and information pointing to drug or alcohol abuse by the custodial parent” (Lombard, 1984). Furthermore, Michigan does not require that a record be kept of the interview and even when judges do record it, they are not required to release a transcript to the parties (Lesauskis v. Lesauskis, 1981).
The courts have varied in whether, and to what degree, to limit the scope of the interview. InBurghdoff v. Burghdoff (1976), the Michigan Court of Appeals held that interviews must be “confined to those matters reasonably necessary to enable the circuit judge to determine and understand the preference of the child…” The court further held that the interview must not include a discussion of other factors germane to the custody disposition. The scope of the conference is limited to gaining this single opinion from the child. The trial court must not use the conference to discover the child’s perception of a parent’s morality or fitness (Burghdoff v. Burghdoff, 1976).
Whether this restriction actually functions to safeguard parents’ rights is highly questionable, given the results of the survey of judges from that jurisdiction (Michigan) (Lombard, 1984). Not only do some judges continue to view the interview as an opportunity to obtain information about the parents from an independent source (the child), but even when strictly attempting to assess preference, evidence of parental misconduct was elicited.
Conversely, some courts do not impose limits on the scope of inquiry. For instance, in Williams v. Cole (1979), The Missouri Court of Appeals stated that the interview is not necessarily limited to ascertaining preference, but may include inquiry “into any `relevant matters’ within the child’s knowledge [which] may bear upon the trial court’s determination of custody.” A survey of judges in Virginia who interview children in custody litigation indicates that they often view the interview as an opportunity to obtain information beyond the child’s preference. For instance, 16 percent of the judges stated that it was “very important” and 46 percent stated it was as “somewhat important” to obtain information from the child about parental behavior. A similar pattern was seen with respect to a judge’s desire to confirm the veracity of parental testimony (Scott et al., 1988).
The scope of the interview (and possibly the degree to which the child is candid) may also be affected by whether of not the interviews are recorded. Failure to record poses a serious threat to the parent’s due process rights, especially when judges are encouraged to broaden the scope of inquiry. The making of a record would serve to decrease the risk of error by the judge who, knowing the transcript would be subject to review, would be restrained from asking improper questions.
Many jurisdictions statutorily mandate that an audiotape or stenographic recording be made (Colorado Revised Statutes, 1973; Montana Code Annotated, 1991). The Uniform Marriage and Divorce Act sec. 404 (a) provides that “The court shall cause a record of the interview to be made and to be part of the record in the case”. Courts in some jurisdictions with such statutes have held the right to be waivable (Lehman v. Billman, 1978) while other courts have found it to be non-waivable (DeYoung v. DeYoung, 1978). Other statutes require a record when it is requested by a party (Delaware Code Annotated, 1981) or state that a record is mandatory unless it is waived by the parties (Minnesota Statutes Annotated, 1983). Statutes may also specify that a record be made of the interview but only included in the court record on appeal and thus not be available to the parties (New Mexico Statutes Annotated, 1978). Courts have varyingly held the requirement to be waivable or non-waivable. In Pennsylvania, for instance, failure to keep a record of the child’s testimony for the purposes of appellate review was held to be reversible error (Lee v. Lee, 1977). The court, in Commonwealth ex rel Gifford v. Miller (1968) stated that “[T]he scope of our review in child custody cases is quite broad and while we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding which has no competent evidence to support it.” Furthermore, some courts have held that while a transcribed record is not required, the judge must enter into the record his general impressions and findings (Seidant v. Seidant, 1964).
The issue of who will have access to the interview transcript may also have a great bearing on how comfortable the child feels in relating her preference regarding custody. Again, there is wide variation among state statutes and court decisions as to who has a right to copies of the transcripts. Some courts have required that the transcript be made available to parents and their counsel (Watermeier v. Watermeier, 1985). In other jurisdictions, the parties are not deemed entitled to the transcript. Rather, it is sealed and only made available to the appellate court. This solution allows the judge to guarantee that the child’s statements will remain confidential while at the same time theoretically protecting the due process rights of the parents.
Another procedural safeguard which may further inhibit a child’s free expression of preference is the inclusion of parent’s counsel during the interview. Some state statutes allow counsel to be present at the trial judge’s discretion (Colorado Revised Statutes, 1973); other jurisdictions mandate that parent’s counsel attend (Illinois Annotated Statutes, 1980) and some allow participation (Minnesota Statutes Annotated, 1983). In states where this issue is not addressed by statute, courts have variously ruled that: a) counsel may attend and participate via direct and cross-examination (Spence v. Levi, 1974); b) counsel may attend but not participate; and c) counsel may be excluded at the judge’s discretion (Lincoln v. Lincoln, 1969; Commonwealth ex rel Gifford v. Miller, 1968).
Pennsylvania’s statute, which was adopted in 1981, provides the following procedural guidelines and requirements:
The court may interrogate a child, whether or not the subject of the action, in open court or in chambers. The interrogation shall be conducted in the presence of the attorneys and, if permitted by the court, the parties. The attorneys shall have the right to interrogate the child under the supervision of the court. The interrogation shall be part of the record (Pennsylvania Statutes Annotated).
Prior to the enactment of this statute, court decisions were inconsistent. Some early cases required the presence of the parent’s counsel (Lee v. Lee, 1977; Commonwealth ex rel Grimes v. Grimes, 1980). However, In Cheppa v. Cheppa, (1977), the court articulated the following rationale for excluding counsel:
The rights of both parents, of course, must be protected; however, the most important consideration for the lower court when attempting to ascertain the true feelings of a child must be to create an atmosphere in which the child will feel free to express himself. Such a setting is much less likely to exist when representatives of the parents (representatives who are going to repeat what the child has said) are present.
A compromise was reached in Commonwealth ex rel. Grimes v. Grimes (1980) where the appellate court held that a trial judge’s exclusion of parents’ counsel was not reversible error. In this instance, the attorneys were given a summary of the interview and allowed to give the judge additional questions to be asked of the children. However, this court more recently held that “when a hearing judge interviews a child in a custody case, certain procedures must be generally met: (1) counsel must be present; (2) counsel must have the opportunity to question the child; and (3) the testimony must be transcribed and made part of the record” (Gerald G. v. Theresa G., 1981).
Accuracy Of Information Elicited From Children By Judges
There is significant variation in the scope of judicial inquiry with regard to interviewing children in custody disputes. Interviews are typically quite brief, the children may be emotionally traumatized and judges usually lack knowledge of child development and child interviewing techniques.
At the heart of an analysis of these interviews is the reliability and validity of the evidence obtained by the judge and her resulting impressions and conclusions. Knowledge of developmental/maturational processes in children may be crucial to effectively communicating with them. Children, depending on their stage of language development, may have difficulty with complex structure and syntax. Children may also assign very different meanings to words than do adults. Also, depending on their developmental level, they may have difficulty with cause and effect relationships and their attentional and short term memory capacities may be quite limited. Furthermore, their stage of moral development may result in an egocentric style and inflexible notions of right and wrong. They may make judgements based on the consequences of others’ behavior rather than on underlying intentions. One mental health professional addressed the difficulty young children have with the ability to form and use moral concepts. Thus, reports of `meanness, hitting and spanking’ may be confused with limit setting, discipline and punishment. Similarly, children may be hampered in their ability to distinguish rewards from bribes, `niceness’ from over-stimulation, fun from foolishness or affection from sexual stimulation” (Schuman, 1984).
Not only do the linguistic and conceptual limitations interfere with verbal expressive skills, but they also limit a child’s comprehension. “The child listener always thinks he or she understands what the speaker is saying and therefore rarely asks questions to clarify the communication or gain more information and the child often engages in free association with the speaker’s remarks, assimilating those remarks into his or her own scheme of thought which may have little or no relationship to what the speaker is attempting to communicate” (Jones, 1984). Children may also be very suggestible, an issue which is dealt with extensively in the literature concerning the validity of child testimony (Loftus, 1979).
These issues pose enormous complexities and difficulties for anyone undertaking to interview a child. Merely accepting at face value assertions by the child, or answers to direct questions without further delving, increases the risk of erroneous conclusions. Problems communicating with and understanding children are clearly apparent from transcripts of in chambers interviews. For instance, Jones (1984) provides an example of semantic difficulties in the following excerpt from a judge’s interview of a 9 year old girl:
Judge: Is there anything you like-what do you like
about your stepmother?
Julie: She loves us, and she cares for us. She…she’s
overprotective.
Judge: What’s that mean? That’s a big word.
Julie: She protects us overly. Like, she protects us
more than usually. She does protect us that
way.
Judge: What’s she protect you from?
Julie: From falling out of trees.
Judge: How about your stepmother?
Julie: I like a lot of things about her.
Judge: Like what?
Julie: She…loves us. She’s overprotective. I told
you.
Judge: Well, that’s one thing you don’t like about her?
Julie: That’s the thing I like about her.
Other excerpts include suggestive and leading questions from the judges as well as compound sentences which are clearly too difficult for young children to understand. For example, one judge posed the following question of a 7 year old: “I want to talk a little with you about visiting your dad. Your dad wants to have you with him…would you like to go to visit him from time to time? Do you know Ms. Mack at all? Do you know who I’m talking about? She used to be one of Mommy’s friends and you used to call her aunt Betty, didn’t you?” The child simply responded “Yes” (Jones, 1984).
Aside from purely cognitive/developmental issues, there are psychological variables that may serve to hamper a judge’s attempts to elicit candid, reliable testimony form the child. Children in custody disputes are likely to be experiencing intense loyalty conflicts and fears of abandonment. For these reasons, interviewers should be skeptical of a child’s superficial expression of preference, which may be invalid and unreliable (Gardner, 1982). “In fact, for the child, each of two apparently contradictory preferences can be equally valid, either at different times or circumstances, or given sufficient stress and immaturity, at the same time and place” (Schuman, 1984). An unambivalent statement of preference may in itself be suspect. Ambivalence, or the capacity to simultaneously experience and accept conflicting feelings, is evidence of emotional maturity and thus, the ability to weigh various thoughts and feelings in making a meaningful choice (Schuman, 1984).
Clinicians have described psychological phenomenon, apart from interview anxiety, which occur in children of divorcing parents and which further complicate assessment. One author describes a “parental alienation syndrome” which results in unjustified criticism of one parent (Gardner, 1986). This clinician, who is a very experienced custody evaluator, observes the phenomenon in over 90 percent of the cases he becomes involved with. This condition is not necessarily the result of blatant brainwashing, but more often evolves out of the “preferred” parent’s own negative attitudes and subtle distortions, which implicate the other parent. It typically manifests itself as an extreme unfounded bias and is usually only revealed after extensive assessment of the child and parent/child interactions.
Courts often speculate as to the underlying motivations for the child’s express wishes (Pact v. Pact, 1972). It is unrealistic to expect that children have not been influenced by the hostile parental attitudes which may be generated in a divorce. One Pennsylvania court noted that some amount of parental pressure is inevitable in most contested custody cases (Mahoney v. Mahoney, 1986). However, many judges are aware that parental intervention can be so extreme as to completely bias the interview and result in a preference that is not genuine.
Material indulgence and pampering are often given as reasons for questioning the validity of a child’s preference. In one case, the Supreme Court of Iowa accounted for two daughters’ preferences to live with their father, in part, by “the normal resentment of the children of their mother’s parental discipline during the school week and the indulgence shown them by their father on weekends when school, preparing supper and homework were not required” (Smith v. Smith, 1965). The Florida Court of Appeals in 1974 commented on the pampering by a father which the children saw through in giving preference for their mother. The father had taken them on exotic vacations and even promised to buy them scuba gear if he won their custody (Taylor v. Schilt, 1974).
Parental coaching designed to influence the child’s testimony has also been cited. In Wallis v. Wallis(1964), the trial court gave custody of two children to the mother, which was consistent with the childrens’ stated wishes. The father appealed and the decision was reversed on grounds that the children were coached by the mother.
Parents have occasionally resorted to “brainwashing” children in an attempt to obtain a favorable evaluation by the child (Gardner, 1986). In Wilke v. Culp (1984), the court cited a plan by the child’s mother and stepfather to systematically brainwash the child and thus alienate him from his natural father. This manipulation, which occurred over a 10 year period, was successful and resulted in the child’s express preference not to visit his natural father. The Supreme Court of New Jersey held the lower court in error in basing the decision to suspend the father’s visitation rights on the child’s manipulated preference. Unfortunately, the conditioning was so effective and created such a fear in the child of his natural father that the court felt that forced visitation would cause emotional harm to the child. In another case, a North Dakota court awarded custody to the father contrary to the express wishes of the children. The State Supreme Court affirmed on grounds that the children were manipulated by the mother who threatened to commit suicide if she was not awarded custody (Jordana v. Corley, 1974).
Judges occasionally question the legitimacy of the preference on grounds that it is not genuine, but fail to state objective reasons for their findings. In People ex rel Geismar v. Geismar (1945), the judge simply stated that “If I thought the isolated expression of preference was deep and genuine and uninfluenced, I would accord it more weight [but] to allow this nine year old boy’s [preference] to prevail, would be tantamount to substituting his tutored choice for the judgement of the court”.
Judicial Competence and the Potential for Bias
Judicial bias was empirically documented in a study of custody decision making in the Colorado courts (Pearson & Ring, 1982). The authors found that older judges were more likely to award custody to the mother while younger judges were more flexible in their determinations. Also, judges in urban areas (Denver County) were significantly more likely to make father-only awards. Interviews with judges whose decisions were included in the study showed, in some cases, a complete disregard for the statutorily delineated criteria for decision making. These judges, instead, relied on their own experience and intuition as to what was in the child’s best interest. With respect to the type of custody awards, a strong bias toward the Tender Years Doctrine was seen. “Several judges were frank about their biases. For example, one older judge confessed that his views about custody reflected his own experiences growing up in a single parent home and being raised exclusively by his mother. Another judge apologized for being `old fashioned’ and favoring mothers. Still another judge said that the critical factor was whether the mother worked or not and was available to the child. He indicated that he would favor nonworking mothers in custody awards.”
Not only do judges often fail to follow statutorily enumerated guidelines, they may be ignorant of relevant social science data or simply ignore it when it clashes with their own notions of desirable custodial arrangements (Brown & Giampetro, 1985). For instance, judges often consider the sexual orientation of prospective caretakers in making custody decisions in spite of research that suggests that this should not be an issue. “A specific concern is whether a homosexual parent raises the child to be a homosexual. This concern assumes homosexual children are less desirable than heterosexual ones. While this assumption is debateable, the fear that children can `catch’ homosexuality exists and creates a need to present social science information to determine the validity of the fear.” A parent’s homosexuality does not affect the development of gender identity of the child (Green, 1978). Lesbian and heterosexual mothers have been found to have similar lifestyles and parenting behaviors (Kirkpatric, Smith & Roy, 1981). More importantly, the development of gender identity was not influenced by the sexual orientation of the mother. Similarly, the children of homosexual fathers are not disproportionately homosexual and there is no indication of a higher incidence of child sexual abuse in the sample studied. In spite of this research, homosexual parents are often denied custody because of their sexual orientation, even though the judges cannot establish a nexus between the parent’s lifestyle and the child’s welfare (Hunter & Polikoff, 1976). Thus, a child’s preference to remain with a homosexual parent might be given little weight or entirely disregarded based on a judge’s misconceptions and ignorance.
Empirical studies also suggest that fathers are equally competent caretakers (Amert, 1982). However, many judges continue to consider gender as relevant to caretaking ability and thus implicitly endorse the Tender Years Doctrine through exercise of discretion (Settle & Lowry, 1982). Similarly, human development theorists strongly argue that the psychological relationship between the parent and child can be more important to normal development than a biological relationship (Goldstein et al., 1979). This “psychological parent” theory emphasizes the continuity of care and the bonding established as paramount in terms of the child’s normal development and welfare. However, judges often prefer biological parents over psychological parents and thus implicitly adopt the “Parental Rights Doctrine” in deviating from the “Best Interest of the Child” standard (Settle & Lowry, 1982). Interviews with judges also underscored how variably importance was attached to the wishes of the child. Some judges believed that a child’s preference was unimportant, while some made a point of interviewing all children in every case. Some judges felt that a 15 minute interview in chambers was too cursory to be of any value.
Given the complexity of child interviewing and assessment, judges’ lack of training and the potential for bias, it is questionable whether judges are competent to conduct such interviews (Goldstein, Freud, Solnit & Goldstein, 1986). Mental health experts have addressed the possibility that some judges are stepping beyond their professional bounds and are acting in the capacity of mental health professionals. The issue of judicial competence was addressed by a West Virginia court, which stated that the “…intelligent determination of relative degrees of fitness requires a precision of measurement which is not possible, given the tools available to judges” (Garska v. McCoy, 1981).
The distinction between mere fact finding and psychological assessment may become blurred. As a trier of fact, the judge theoretically is limited to determining the veracity of the child’s stated preference. However, as a Connecticut court pointed out, this is not equivalent to judging a witness’ character (Kovacs v. Szentes, 1943). If a judge undertakes to assess the emotional maturity, character structure or psychological adjustment of the critical participants in a case, she may then be assuming the role of an expert witness. This situation may create additional due process problems in that parents’ attorneys would have no opportunity to challenge the validity of the conclusions.
Case law provides some excellent examples of judges acting as “experts.” In one instance, a judge who questioned the conclusions of a mental health expert based in part on the results of a projective psychological test (house-tree-person test), re-administered the test in chambers and came to different conclusions regarding the child’s adjustment (In the Interest of Ross, 1975). In addition, the findings were not entered into the record and therefore were not available to the parties to challenge. The appellate court side-stepped the issue of judicial competence and reversed on procedural grounds, stating that “apparently the court felt qualified to question and analyze the testimony of psychologists. It may very well be that the trial court was so qualified but such separate testing and conclusions derived therefrom not shown of record would require reversal. It is not good practice for this court to undertake, independently, any such analysis. All conclusions should be based upon evidence properly introduced in open court and subject to cross-examination and questioning by the parties or their counsel.” The court also determined that the judge could no longer be considered unbiased and remanded the case to another judge.
In another case, a judge reached conclusions regarding the “emotional make-up of the parties” where he found the father to be “arrogant, overprotective and critical.” He also speculated as to how the parents’ psychological traits would affect their childrens’ development (Areen, 1978). In citing this case, Goldstein et al., (1986) argue that, even if the judge was correct in his diagnoses and conclusions, he in effect became a court witness who did not take the stand. Thus, the parties were denied the opportunity to challenge his credentials as an expert, to challenge his conclusions, or to introduce other experts to testify on their behalf.
The Role of Advocates and Guardians Ad Litem
The weight given to childrens’ preferences may also vary with the degree of independent representation they have in the proceedings (Bersoff, 1976). They are clearly interested parties, yet are often left without counsel to represent them. They cannot be certain that either of the contesting parents will advocate for their interests, which may conflict with those of their parents. A parent’s attorney’s loyalty is only to his/her client and not the child (Pelham v. Griesheimer, 1982). This is true even when the attorney may believe that the parent she is representing may not be the best caretaker for the child. The Oregon Court of Appeals, in 1974, held that shared representation between a parent and child in a custody dispute did not satisfy the child’s due process rights (State ex rel. Juvenile Department of Multnomah County v. Wade, 1974).
Even the judge may not be in a position to competently determine what is in the child’s best interest. Judges are restricted to a brief, stilted in-chambers interview and evidence presented by the parent’s attorneys (Inker & Perretta, 1971). One author notes that “the reliability of such evidence is highly questionable, since it is likely to be colored by the biases of the parents whose primary concern is to discredit the other in the eyes of the court. This is because the `best interest of the child’ is often established by showing the unfitness of a particular parent” (Berdon, 1976). Courts have also sought to represent the child’s interests through the appointment of expert evaluators to assess the family situation and submit a report. This may result in a less biased opinion than that of an expert hired by either parent, but the court-appointed evaluator is actually just another witness who cannot truly advocate for the child.
Obviously, the best way to insure that the child’s interests are fully considered is to provide them with independent counsel who can call witnesses, introduce evidence and conduct independent investigations. Independent counsel would also be in a better position than the judge to determine if the child has been coached or manipulated by the parents (Note, 1978).
Even though children in custody cases do not currently enjoy a Constitutional right to counsel, 24 states statutorily provide for the appointment of independent counsel for children at the court’s discretion (Flock, 1982). The Uniform Marriage and Divorce Act sec. 310 also provides for the discretionary appointment of a representative of the child as follows: “The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody, and visitation”. The comment that follows this section states that “The attorney is not a guardian ad litem for the child, but an advocate whose role is to represent the child’s interests. The court shall enter an order for costs, fees, and disbursements in favor of the child’s attorney. The order shall be made against either of both parents, except that, if the responsible party is indigent, the cost, fees, and disbursements shall be borne by the (appropriate agency).” The appointment of counsel may be made on motion by either parent or at the court’s discretion. Statutes such as those of Wisconsin (Wisconsin Statutes Annotated, 1980) and Ohio (Ohio Revised Code Annotated, 1986) that use the word “shall” serve to absolutely safeguard the child’s due process rights. “It is not enough to merely confer discretion on the court to appoint counsel for children because experience shows that this will not be done” (Commentary, 1973).
Unfortunately, only four states, Wisconsin, Arizona, Ohio and Vermont, require the appointment of independent representation for the child in contested custody cases. The Wisconsin statute, for example, provides that “the court shall appoint an attorney admitted to practice in this state as guardian ad litem to represent the interests of children as to custody, support and visitation” (Wisconsin Statutes Annotated, 1980). In emphasizing the importance of independent counsel, the Wisconsin Supreme Court stated that children are not to be “buffeted around as mere chattels in a divorce controversy, but rather…treated as interested parties whose welfare should be the prime concern of the court in its custody determination” (Wendland v. Wendland, 1965). Furthermore, the court has expressly stated that failure to appoint separate legal counsel for the child is grounds for reversal (Biel v. Biel, 1983).
Assuming that independent counsel is appointed, how should she proceed in representing the child? Even where the attorney is an advocate as opposed to a guardian ad litem, differences between representing children and adults quickly become apparent. For instance, the attorney is not restricted to advocating for the express wishes of the client. Younger children may not be capable of articulating their wishes. In many respects, the attorney is thrust into the role of a mental health expert. Interviews with the child, parents, teachers and caseworkers may be required. The attorney may also need to assess the child’s emotional needs, the unconscious motivations for stated preferences and whether or not the child has been manipulated, coerced or coached by either parent. Also, the attorney has a duty to help the child understand her legal situation and to include, as much as possible, the child in the decision making process (Note, 1978).
Generally, attorneys represent their clients’ interests zealously and without regard for the feelings of other parties of interest. However, in custody litigation, this duty may change. The child will usually maintain a relationship with both parents after the divorce. Thus, the attorney must always be cognizant of managing the case in a manner that preserves, as much as possible, the child’s relationship with each parent.
The Role of Mental Health Professionals
State statutes generally provide that a judge, in her discretion, may have the child evaluated by a mental health expert such as a social worker, psychiatrist or psychologist. The Uniform Marriage and Divorce Act sec. 404 (b) has a similar provision as follows:
The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel upon request. Counsel may examine as a witness any professional personnel consulted by the court.
Such evaluations may be conducted in lieu of or in addition to the judge’s interview. In fact, judges frequently opt to have children interviewed by clinicians. In a survey of judges in the Detroit area, 73 percent recommended such an assessment (Lombard, 1984).
The advantages of having children assessed by experienced clinicians, knowledgeable of child development, are clear. Such professionals can tailor their interview to the cognitive/linguistic level of the child. Also, they usually spend much more time with the child and generally observe parent-child interactions. Typically, children are assessed on more than one occasion, which theoretically results in a more reliable evaluation. Clinicians can employ an array of psychological tests to facilitate the evaluation. This comprehensive procedure is likely to provide a more valid and reliable assessment of the child’s preference, the reasoning for the preference and the quality of the child’s relationships with her respective parents (Levy, 1986).
These assessments result in reports submitted to the court. Such a procedure protects the due process rights of parents because the witness may be called to the stand, where her credentials, assessment techniques, inferences and conclusions may all be challenged. Furthermore, the report can give the general tone of the child’s statements by summarizing and paraphrasing, which may help insulate the child from the trauma of having her sensitive statements directly reported to the parents. The child may be given reasonable guarantees of confidentiality by the clinician and the child’s statements are likely to be more candid.
Mental health professionals may also be retained by the parties to advocate for their position. This practice has been severely criticized by experts in the field due to the potential for bias. For instance, in In re Maxwell (1982), two psychologists retained by the father testified that, while both parents were well qualified, the father was “more mature”. However, the trial court attributed little weight to their testimony and noted that “Neither psychologist placed much significance on the husband’s jumping through a plate glass window to avoid service of the divorce complaint or his abusive conduct toward his wife during sexual activity”. The appellate court found no abuse of discretion in view of the facts of the case.
In another case, the court found two experts, one retained by the party and one by the court, to be equally well qualified, but gave more weight to the testimony of the latter merely on grounds that she was disinterested in the outcome (Palmer v. Tokarek, 1980).
The validity of evaluations conducted by mental health professionals are also suspect. The families being evaluated are usually in a state of emotional crisis and therefore it is questionable how much can be inferred about their normal functioning based on this limited and biased behavioral sample.
Several studies have addressed the nonstandardized, subjective nature of child custody evaluations. Ash and Guyer (1984) examined custody evaluations ordered by the Michigan courts over a four year period. The evaluations were conducted by psychiatry residents, psychology graduate students, psychologists, psychiatrists and social workers who had “different approaches to custody cases, different conceptual bases on which they formed recommendations and varying amounts of training”.
In another study, questionnaires containing various hypothetical custody cases were sent to lawyers, psychiatrists, psychologists and social workers, all of whom had conducted custody evaluations. The custody recommendations arrived at were significantly correlated with demographic variables of the evaluators (age, sex, marital status and discipline). For instance, female psychologists tended to give least endorsement to biological mothers. Female psychiatrists and older evaluators in general were most likely to recommend the mother as the custodian, while evaluators who had never been married most frequently opposed placement with the mother (Woody, 1977). This evaluator bias raises very serious questions regarding the validity and reliability of the evaluations being conducted. In fact, the author suggests that attorneys could exploit this bias by selecting experts as they do jurors, considering the demographic variables that would bias their decision in the desired direction.
REFERENCES
Amert, L. (1982). Differences in children’s behavior toward custodial mothers and custodial fathers. Journal of Marriage and the Family, 44, 73-85.
Ariz. Rev. Stat. 25-334(A) (1976).
Ash, P., & Guyer, M. (1984). Court implementation of mental health professionals’ recommendations in contested child custody and visitation cases. Bulletin of the American Academy of Psychiatry and Law, 12, 137-154.
Atkinson, J. (1984). Criteria for deciding child custody in the trial and appellate courts. Family Law Quarterly, 18(1), 1-41.
Benedek, E. P., & Schetky, D. H. (1985). Custody and visitation: Problems and perspectives.Psychiatric Clinics of North America, 8(4) 857-873.
Berdon, L. (1976). A child’s right to counsel in contested custody proceedings resulting from termination of the marriage. Connecticut Bar Journal, 50 150-183.
Bersoff, D. N. (1976-77). Representation for children in custody decisions: All that glitters is not Gault. Journal of Family Law,15, 27-49.
Biel v. Biel, 336 N.W.2d 404 (Wisc.App. 1983).
Borden v. Borden, 193 So.2d 15 (Fla. 3d DCA 1966).
Brown, M. N., & Giampetro, A. (1985). The contribution of social science data to the adjudication of child custody disputes. Capitol University Law Review, 15, 43-61.
Burghdoff v. Burghdoff, 66 Mich.App. 608, 612, 239 N.W.2d 679, 682 (1976).
Burkhart v. Burkhart, 282 N.W. 231, 234-235 (1938).
Burley v. Burley, 438 So.2d 1055 (Fla. 4th DCA 1983).
Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155, 1157 (1985).
Cal. Civ. Code sec. 4600 (West Supp. 1983).
Cheppa v. Cheppa, 246 Pa.Super. 149, 369 A.2d 854 (1977).
Colo. Rev. Stat. sec. 14-10-126(1) (1973).
Commentary, (1973). The “why” behind appointing guardians ad litem for children in divorce proceedings, 57 Marquette Law Review, 57, 103-146.
Commonwealth ex rel Gifford v. Miller, 213 Pa.Super. 269, 273, 248 A.2d 63, 66 (1968).
Commonwealth ex rel Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980).
Crownover v. Crownover, 33 Ill.App.3d 327, 337 N.E.2d 56 (1975).
Del. Code Ann. title 13 sec. 724(a) (1981).
Derdeyn, A. P. (1976a). Child custody contests in historical perspective. American Journal of Psychiatry, 133(12) 1369-1376.
Derdeyn, A. P. (1976b). A consideration of legal issues in child custody contests. Archives of General Psychiatry, 33(Feb.) 165-171.
Devine v. Devine, 398 So.2d 686 (Ala. 1981).
DeYoung v. DeYoung, 62 Ill.App.3d 837, 379 N.E.2d 396 (1978).
Eddy v. Staufer, 160 Fla. 944, 37 So.2d 417 (1948).
Elkins v. Vanden Bosch, 433 So.2d 1251 (Fla.3d DCA 1983).
Ellingsen v. Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984).
Fanning v. Warfield, 252 Md. 18, 248 A.2d 890 (1969).
Fla. Stat. Ann. sec. 61.13(3)(i) (West Supp. 1989).
Flock, B. M. (1982-83). Custody disputes arising from divorce: The child’s need for counsel in Pennsylvania. Dickenson Law Review, 87, 351-372.
Gall v. Gall, App., 336 So.2d 10 (1976).
Gardner, R. (1982). Family evaluation in child custody litigation. Cresskill, NJ: Creative Therapeutics.
Gardner, R. (1986). Child custody litigation: A guide for parents and mental health professionals. Cresskill, NJ: Creative Therapeutics.
Ga. Code Ann. sec. 19-9-1 (2971) (Supp. 1990).
Garska v. McCoy, 278 S.E.2d 357, 361 (W.Va. 1981).
Gerald G. v. Theresa G., 284 Pa.Super 498, 426 A.2d 157, 161 (1981).
Goldstein, J., Freud, A., Solnit, A. J., & Goldstein, N. (1986). In the best interests of the child: Professional boundaries. New York: Free Press.
Goldstein, J., Freud, A., & Solnit, A. J. (1979). Beyond the best interests of the child. New York: Free Press.
Green, R. (1978). Sexual identity of 37 children raised by homosexual or transsexual parents.American Journal of Psychiatry, 135, 692-697.
Howell & Toepke, (1984). Summary of child custody laws for the fifty states. American Journal of Family Therapy, 12(2), 56-61.
Hunter, N. D., & Polikoff, N. D. (1976). Custody rights of lesbian mothers: legal theory and litigation strategy. Buffalo Law Review, 25, 691-723.
Ill. Ann. Stat. ch. 40 sec. 604(a) (Smith-Hurd 1980).
In re Davis, 228 Pa.Super. 453, 432 A.2d 600, 607 (1981).
In re Howard, 382 So.2d 194 (La.App.2d Cir. 1980).
In re Jack H., 106 Cal.App.3d 257, 165 Cal.Rptr. 646, (1980).
In re Marriage of Mehlmauer, 60 C.A.3d 104, 107, 131 Cal.Rptr. 325 (1976).
In re Maxwell, 8 Ohio App.3d 302, 456 N.E.2d 1218 (1982).
In the Interest of Ross, 29 Ill.App.3d 157, 329 N.E.2d 333 (1975).
In re Marriage of Kramer, 177 Mont. 61, 580 P.2d 439 (1978).
In re Marriage of Rosson, 178 Cal.App.3d 1094, 1103, 224 Cal.Rptr. 250, 256 (1986).
Inker & Perretta, (1971). A child’s right to counsel in custody cases. Family Law Quarterly, 5, 108-123.
Jones, C. J. (1984). Judicial questioning of children in custody and visitation proceedings. Family Law Quarterly, 18(1), 43-91.
Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985).
Jordana v. Corley, 220 N.W.2d 515 (N.D. 1974).
Kirkpatrick, M., Smith, C., & Roy, R. (1981). Lesbian mothers and their children: A comparative survey. American Journal of Orthopsychiatry, 51, 545-551.
Kitchens v. Kitchens, 305 So.2d 249 (Fla. DCA 1974).
Kovacs v. Szentes, 130 Cnn. 229, 233, 33 A.2d 124, 126 (1943).
Kreutzer v. Kreutzer, 226 Or. 158, 359 P.2d 536 (1961).
La. Civ. Code Ann. 146(C)(2)(i) (1974).
La. Rev. Stat. 13:3665 (1968).
Lee v. Lee, 248 Pa.Super. 155, 374 A.2d 1365 (1977).
Lehamn v. Billman, 178 Mont. 367, 584 P.2d 662 (1978).
Lesauskis v. Lesauskis, 111 Mich.App. 811, 314 N.W.2d 767 (1981).
Levy, A. M. (1986). Child custody determination: A proposed psychiatric methodology and its resultant case typology. Journal of Psychiatry & Law, 189-214.
Lincoln v. Lincoln, 24 N.Y.2d 270, 247 N.E.2d 659, 661, (1969).
Loftus, E. (1979). Eyewitness Testimony. MA: Harvard University Press.
Lombard, F. K. (1984). Judicial interviewing of children in custody cases: An empirical and analytical study. University of California, Davis Law Review, 17, 807-851.
Lyman, R. D., & Roberts, M. C. (1985). Mental health testimony in child custody litigation. Law & Psychology Review, 9(15), 31-48.
Mahoney v. Mahoney, 354 Pa.Super. 585, 512 A.2d 694 (1986).
Marcus v. Marcus, 109 Ill.App. 2d 423, 248 N.E.2d 800 (Ill. 1969).
Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976).
Melton, G. B. (1986). Shrinking power of the expert’s world: Who really can determine the best interests of the child? Family Law Advocate, 9, 22-26.
Mich. Comp. Laws Ann. sec. 722.23 (West Supp. 1981).
Minn. Stat. Ann. sec. 518.166 (West Supp. 1983)
Miss. Code Ann. sec. 93-11-65 (1972).
Mont. Rev. Code Ann. sec. 40-4-214(1) (1991).
Mont. Rev. Code Ann. sec. 48-332(2) (1983).
Murphy v. Murphy, 666 Mont. 755, 40 St.Rep. 1188, 1190 (1974).
N.M. Stat. Ann. sec. 40-4-9(C) (1978).
Note, (1978). Lawyering for the child: Principles of representation in custody and visitation disputes arising from divorce. Yale Law Journal, 87, 1126-1151.
Ohio Rev. Code Ann. sec. 3109.04(A) (Page Supp. 1980).
Pact v. Pact, 70 Misc.2d 100, 332 N.Y.S.2d 940 (1972).
Palmer v. Tokarek, 421 A.2d 289 (1980).
Pearson, J., & Ring, M. A. L. (1982). Judicial decision-making in contested custody cases.Journal of Family Law, 21, 703-724.
Pelham v. Griesheimer, 92 Ill.2d 13, 440 N.E.2d 96, (1982).
Penn. Stat. Ann. Title 42 sec. 1915.11 (Purdon 1987).
People ex rel Geismar v. Geismar, 184 Misc. 897, 54 N.Y.2d 747 (1945).
Pollack v. Pollack, 196 So.2d 771 (Fla. 3d DCA 1967).
Radin, S. S. (1984). The relationship of the parental preference guideline to attachment behavior in young children of divorce. Journal of Psychiatry and Law, (Winter), 473-482.
Rogers, L. C. (1987). Child custody: The judicial interview of the child. Louisiana Law Review, 47559-588.
Schuman, D. C. (1984). The unreliability of children’s expression of preference in domestic relations litigation: A psychiatric approach. Massachusetts Law Review, 14(Spr.), 14-19.
Scott, E.S., Reppucci, N. D., & Aber, M. (1988). Children’s custody preference in custody decisions. Georgia Law Review, 22, 1035-1078.
Seidant v. Seidant, 24 Wisc.2d 73, 128 N.W.2d 66 (1964).
Settle & Lowery, (1982). Child custody decisions: Content analysis of a judicial survey. Journal of Divorce, 6, 125-136.
Siegel, D. M., & Hurley, S. (1977). The role of the child’s preference in custody proceedings.Family Law Quarterly, 11(1), 1-58.
Smith v. Smith, 133 N.W.2d 677, 681 (Iowa 1965).
Speca, J. M., (1978). The role of the child in selecting his or her custodian in divorce cases. Drake Law Review, 27(3) 437-457.
Spence v. Levi, 133 Ga.App. 581, 211 S.E.2d 622 (1974).
State ex rel. Juvenile Department of Multnomah County v. Wade, Or.App., 527 P.2d 753 (1974).
Stevens v. Stevens, 215 S.E.2d 881, 882 (NC App., 1975).
Taylor v. Schilt, Fla.App., 292 So.2d 47 (1974).
Tomlinson v. Tomplinson, 93 Idaho 42, 454 P.2d 756 (1969).
Wallerstein, J. S. (1985). Children of divorce: Emerging trends. Psychiatric Clinics of North America, 8(4), 837-855.
Wheeler v. U.S. 159 US 523, 165 S.Ct. 93 (1895).
Wilke v. Culp, 196 N.J. Super. 487, 483 A.2d 420 (Ct.App. Div. 1984)
Wallis v. Wallis, 235 Md. 33, 200 Ad. 164 (1964).
Watermeier v. Watermeier, III, 462 S.2d 1272 (La.App. 5 cir., 1985).
Weithorn, L. & Campbell, A. (1982). The competency of children and adolescents to make informed treatment decisions. Child Development, 35, 589-617.
Wendland v. Wendland, 29 Wis.2d 145, 157, 138 N.W.2d 185, 191 (1965).
Williams v. Cole, 590 S.W.2d 908, 911 (Mo. 1979).
Wisc. Stat. Ann sec. 767.045 (West Supp. 1980).
Witmayer v. Witmayer, 320 Pa.Super. 372, 467 A.2d 371 (1983).
Woody, R. H. (1977). Behavioral science criteria in child custody determinations. Journal of Marriage and Family Counseling, 3(1), 11-18.
ADVICE PACE MEMBERS WISH THEY HAD RECEIVED
BEFORE ENTERING THE CUSTODY EVALUATION FIELD
We are in a position now to tabulate some of the responses received on the survey which asked PACE members to offer other professionals, possibly new to the field, the advice they wish they had been given before entering the field. Since the responses were so divergent, the best flavor can be given by picking the most representative responses to each question.
1. If you were a mentor for a young person about to begin custody evaluations, and you wanted to offer a few sentences of advice, something you learned from experience that cannot be gotten from books, what would you tell this person? (You may not write: ADon=t do it!@)
The most frequently given response is that a custody evaluator should have available a detailed model of a comprehensive evaluation. (As of the time that this was written, I know of several such models. One is offered by Ben M. Schutz, Ellen B. Dixon, JoAnne C. Lindenberger and Neil J. Ruther, in Solomon=s Sword. ASPECT is authored by Ackerman and Schoendorf. Philip M. Stahl authored Conducting Child Custody Evaluations. The editor has a model coming out in September, published by Brunner-Mazel, entitled The Custody Evaluation Handbook: Research-Based Applications and Solutions. Also, the latter along with Gail Elliot, will soon offer a comprehensive custody evaluation standard system, to be published by Village Publishing, Inc. I consider Solomon=s Sword a Aclassic,@ because of the way it manages to say so much in such a brief amount of space. It manages to present the material in an exceedingly clear way. I wonder if this is because the lead author is also a notable writer of fiction. It=s obvious to me that whoever did the writing here knew how to write.)
The second most frequently given response to the above question is that any new evaluator should make sure to get good supervision.
The third point was that everything– everything!– should be documented carefully.
The fourth most frequently mentioned item was that the evaluator should attempt to use data-based tests at the heart of the evaluation.
The fifth most frequently mentioned item is that the evaluator should be exceedingly careful to learn all of the relevant legal and ethical guidelines in a given jurisdiction and to follow them to a Atee.@ (In Canada, it was noted that if one wants to depart even an iota from the rather rigid guidelines, that permission should be sought from the relevant board in a very explicit way.)
The next most frequently mentioned item was that the evaluator should use a wide variety of projective techniques as well as other tests. Respondents frequently mentioned their own favorites e.g., the Rorschach Test.
Finally, it was mentioned that the evaluator should always get a good detailed history up front.
2. What has been the most troubling or hurtful experience you have had doing custody evaluations?
Here, we dealt with a number of personal laments. I feel empathy with each of the respondents. It almost always involved some kind of slap-on-the-wrist by some regulatory body, often in ignorance of relevant legalities. These events are particularly vexing when the evaluator is careful to not go beyond the scope of his or her data-base in proffered testimony.
Another frequently mentioned item here was the manner in which the legal system deals so leniently with sex offenders.
Another item had to do with fellow professionals who do outrageous things to give the mental health field a bad image.
3. What has been your funniest experience in conducting custody evaluations, either with the participants or in a courtroom?
Almost all respondents, sadly, could think of nothing very funny to do with custody evaluations. I personally find funny the inflated image of so many judges, who put on the most oh-so sincere faces, dredge up mellow tones, and then lecture custody litigants in court with an attitude that assumes these disputants will follow what is said. I frequently hear a pompous judge say something like the following: ANow you two will just have to stop fighting,@ and then go to act as though this will happen. I think these judges are treated with such ultra-respect in the courtroom that they believe the rest of the world thinks of them in the same way. One respondent wrote that the funniest experience regarding a custody evaluation was being asked to work out a visitation schedule for a pet dog.
4. What have you done or published recently that you would like your companion PACE colleagues to know about?
The answers to this question will be summarized elsewhere.
5. What Atrap@ have you fallen into in doing a custody evaluation (either on cross-examination or any other way)? With hindsight, how could you have avoided this?
Almost all responses here had to do with learning to handle cross-examination ploys.
Next, there was the general opinion expressed that with growing comfort in the courtroom one can avoid falling into certain practices that make testifying uncomfortable. For example, the comfortable, assertive evaluator will not allow him- or herself to overstate some position. The comfortable and experienced evaluator takes seriously the notion that an expert witness offers scientific information to the court and does not appear as an advocate.
One respondent claimed that the evaluator should avoid committing to the Areasonable degree of scientific certainty@ position but should rephrase this as the ability to Aprovide a professional opinion.@
Canadian respondents often spoke of the lack of clarity in the custody/access guidelines, especially in relationship to differentiating the pathway that leads toward mediation from one that would lead toward evaluation.
6. The Athorniest@ issue in performing (non-comprehensive) custody evaluations involves whether or not the evaluator should Asee@ or evaluate one Aside@ only.
By far, the majority view to this is that it is quite legitimate to do a one-sided evaluation when either one parent refuses to cooperate, is incarcerated, or where the referral question has to do with a given individual=s emotional status. The main point made was that conclusions must be limited to those that follow from the factual data available.
Click here to return to the Custody Newsletter Archive

DISCLAIMER
This email and any files transmitted with it are confidential and privileged information.
You must not present or furnish this message to another party without gaining permission from the sender. If you are not the intended recipient you must not copy, distribute or use this email or the information contained in it for any purpose other than to notify the sender. If you have received this message in error, please notify the sender immediately, and delete this email from your system.